|
|
|||||
|
|
|
I. THEMES
A) Rules + Principles = Law 1. The rules are easy; the principles are difficult as applied to the situation.
B) Indeterminacy is the hallmark of family law b/c the rules are always changing.
C) What is a family? 1. Images v. Reality 2. Family is the building block of society 3. Family is a system of wealth-maintenance 4. Religion v. State 5. Private v. Public 6. Havens or Hell? 7. Role of Community 8. Extended Family 9. Defining Family: Individual? State? Church?
II. Images v. Reality
a) Only 10-30% of the population represents the families on tv (white, middle class).
III. Family is the building block of society
A) SEE Boddie v. Conn.
B) Divorce a) Divorce Themes 1. The legislature empowers ct to decide fault-based divorce. 2. Views: Divorce fostered virtue and happiness v. Divorce would throw society into immoral prostitution. 3. Many jur. require fault grounds for divorce, but some don’t. 4. There are 6 types of divorce: (1) emotional (2) legal (3) economic (4) co-parental (5) community (6) psychic
b) Lickle v. Lickle (1947) 1. Facts: Married couple. Man goes off to WWI. She spends a lot of time w/another guy and often sleeps at his house. Man comes back and wants to have sex. She refuses. Man asks her to move away, she again refuses. 2. Issue: Wife spent time and slept with another guy, but did she commit adultery? 3. To prove adultery, you must prove: (1) opportunity (2) disposition to commit adultery. 4. The standard of proof is ‘clear and convincing’→highest civil standard. 5. Holding: Ct finds opportunity is met, but finds the married woman’s actions to be innocent. Thus, the test fails #2, and she did not commit adultery. 6. Many jur. abandoned adultery as grounds for divorce b/c the ct didn’t want to foster spouses spying on each other to prove adultery. Instead, some states require spouse to prove cruelty. 7. HYPO: Does the fact that a wife has a baby be used as evidence to prove adultery? Probably, but there are policy concerns. This would label the kid as the object of proof as a bastard. Therefore, the majority of states don’t allow it as evidence. The counter-arg is that this condones adultery and permits it if the fact that a kid was born is the only evidence. But the public policy of future consequences for the kid rules. [*This is the historic view and maybe should no longer hold true in modern times.] Paternity is a presumption, so w/o proof otherwise, we should assume the husband is the father. 8. Florida’s grounds for divorce is no-fault. The exception is for division of property and custody, where adultery is relevant. This is b/c it’s relevant to the care of the kid and economics b/c an adultering spouse is probably wining and dining someone else.
c) Muhammad v. Muhammad (1993) 1. Facts: Couple moved from Michigan to University of Islam. Her life was so restrictive that she left. Those were her grounds for cruelty. 2. Issue: Does this case stand for cruelty within a marriage or indict a religion. 3. ∆ says she knowingly entered into this type of marriage, and she was not treated cruelly within the confines of marriage of how that religion operates. 4. The grounds existed for irreconcilable differences (no fault), but she chose the fault ground to attach a stigma to her husband and to benefit her when it came to property division and child custody (alimony). 5. Holding: Ct upheld this as cruelty b/c these living conditions would be “unbearable to many, if not a majority, of women in our society.” This was cruelty even though the husband never put her in reasonable danger for her life. 6. *Cruelty is supposed to be habitual, though single incidents can count is they are severe. This includes physical, emotional, and psychological harm.
d) Reid v. Reid (1989) 1. Facts: Both spouses are doctors. After marriage, intimacy deteriorated b/c husband worked so hard. She feels abandoned, so she physically leaves. He argues that he shows his love by working so hard to support family. Now she wants spousal support b/c he ‘constructively deserted her.’ 2. Holding: Ct finds for husband b/c although he deserted his wife emotionally, she is the one who physically deserted him. Thus, she is not entitled to spousal support. 3. The Ct didn’t buy her argument that she physically left to prove a point and to get him to reconcile, b/c she filed for divorce soon after she left (2 months).
C) Defenses for Divorce
a) Parker v. Parker (1988) [Defenses for Divorce] 1. Facts: husband spied on wife, verbally abused her, had affairs. She alleged habitual cruelty (evidence of adultery can be included in that). He defended saying that she had adultery as well. 2. Holding: Ct refuses to find fault-ground for divorce b/c of the defense of recrimination (clean hands doctrine). 3. In the past, cts would force the couple to stay together so they couldn’t hurt the rest of society.
b) Haymes v. Haymes (1996) [Defenses for divorce] 1. Facts: Married couple tries to reconcile and she consents to sex with him. He alleges condonation (she forgave him and no divorce) 2. Holding: Ct upholds divorce and refuses defense of condonation b/c that defense requires manifestation of forgiveness—not just sex. 3. Why did the Ct get rid of this defense? Wouldn’t this promote reconciliation?
c) Other Defenses 1. Collusion—couple can’t agree to create a fault ground to defraud the ct. 2. Conivement—Express or implied consent by spouse to defraud/misconduct. This is a defense to divorce b/c one who consents cannot receive injury and b/c clean hands doctrine. 3. Insanity—“I didn’t know what I was doing so I should get a divorce.”
d) Fault v. No-Fault System: 1. Fault: (1) holds parties accountable (2) More billable hours (3) More defraud on ct (4) Parties are more adversarial (5) Better for women b/c they’re more likely to have grounds and men create the fault. Traditionally, women are more likely to get $$ in settlement. 2. No Fault: (1) Cts shouldn’t decide relationships—individuals should. (2) Diminishes adversarial nature (3) The fault grounds were symptomatic but not the cause of the break-up. (4) Less fraud on cts (5) Fault cts assume fault is based on 1 person, when realistically its usually both. (6) Less paternalism, so we can protect women less.
D) No-fault Divorce
a) In Re Marriage of McKim (1972) 1. Facts: couple wants no-fault divorce. Wife doesn’t show up at ct. 2. Issue: Can the couple get divorced w/o the wife even showing up to ct b/c fault grounds don’t have to be established? 3. Holding: Ct says both spouses must appear in ct to get a divorce b/c a no-fault divorce is not ‘divorce on demand.’ Cts ought to review the whole marriage b/c the state has an interest in promoting stable units of society. 4. *Teach says that the majority wants to keep some vestiges from the past so divorce isn’t so easy.
b) Nieters v. Nieters (1991) 1. Facts: Husband tries to get divorce alleging that his marriage is ‘irretrievably broken.’ Wife tries to prevent by claiming that the 5 factors aren’t met. 2. To prove ‘irretrievably broken,’ ct looks at: (1) adultery, (2) abandonment, (3) cruelty, (4) live separate, (5) lived separate for 24 months. 3. Holding: Ct denies divorce b/c the factors were not met. 4. Teach says this shows us that even though it’s no-fault divorce, the couple can get divorced for any reason [???] The purpose of no-fault was to keep marriages together in a less adversarial system. But, it has become essentially ‘divorce on demand.’ There is still a ct process, but the parties just leave the important factors on the complaint???
c) Bennington v. Bennington (1978) 1. Facts: Wife gets stroke in 1963 and can no longer have sex. Husband moves out in 1973 but still cares for her. By 1976, he no longer takes care of her. 2. Issue: What does it mean to live separate and apart? 3. Holding: Ct says living separate and apart means to no longer act as a team. Ct holds that the separation began in 1976, and husband must wait 2 more years to officially divorce. By statute, the wife didn’t have proper notice in 1973 b/c he still cared for her.
|
|
||||||||||||||
|
|
||||||||||||||||
