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Family Law
Southern Illinois University School of Law
Upchurch, Angela K.

Family Law
Fall 2015
Professor Upchurch
I.                   Introduction to Family Law
A.    Dynamic area of the law, lots of challenges and reforms presently occurring
B.     Complex area of practice because of overlap of many areas of law and interaction with laws of other jurisdictions
II.                Cohabitation
A.    Marvin v. Marvin
i.                    Legal recognition by the Marvin court
1.      Enforcement of Express contract between the parties unless in exchange for meretricious sexual services
2.      Enforcement of Implied contract is permissible unless based on meretricious sexual services
3.      Recognition of equitable
ii.                  Finding an Implied contract between cohabitants
1.      Continuous cohabitation
2.      Duration
3.      Purpose of the relationship
4.      Commingling funds (pooling together of resources)
5.      Intent of the parties
B.     Hewitt v. Hewitt
i.                    Non-recognition of legal rights – Illinois supreme court holds no recognition of rights of unmarried cohabitants through Marvin-style contracts
ii.                  Reasons for not recognizing rights:
1.      Public policy concerns – Weaken marriage; impact other legal decisions; inheritance; wrongful death actions; workmen’s compensation; parental rights; child welfare (social and psychological effects); general welfare of the citizens of the state
2.      Public policy is best dealt with by legislature – Considers Marvin court to be naïve – these contracts are based on sexual relationship; better able to determine impact on society and evaluate social mores
3.      Legislature clearly suggests not permitted – no common law marriage; no no-fault divorce; limitations on private contracts in marriage altering legal rights; recognition of putative spouse doctrine
C.     Approaches around the country
i.                    Several states permit enforcement of contracts between cohabitants
ii.                  Several limit this to express written contracts (NY, MN, NJ)
iii.                Several forbid any enforcement (Illinois, GA, ME, LA, TN, WV)
iv.                Illinois update – Still follows Hewitt, courts citing it have rejected loss of consortium claims, disallowed award of equitable interest of shared property
D.    ALI approach- Don’t need to know ALI for the exam
i.                    ALI provides right to share property acquired during the partnership if:
1.      They maintain a common household for a significant period of time: OR
2.      They can establish that they share life together as a couple (shown through a variety of factors i.e., duration, intent, commingling, how viewed by others, etc.)
E.     Equitable remedies
i.                    Trusts
1.      Constructive Trusts – Intended to prevent a person who has obtained property through actual or constructive fraud from benefitting at the expense of another person (example: one party has contributed considerable time and labor to the other party’s acquisition of property)
2.      Resulting Trusts – Provides means of transferring title when circumstances indicate that the parties actually intended for the defendant to hold property on behalf of (“in trust of”) the plaintiff (Example: resulting trust arises when defendant holds title, but the plaintiff provided some or all the money used to purchase the property (to the vendor))
III.             Premarital Agreements
A.    Uniform Premarital Agreement Act
i.                    Formalities – In writing and signed
ii.                  What can be consented to? Property rights (including management); disposition of property upon separation, divorce or death; spousal support(including waiver); testamentary documents; death benefits; choice of law; catch-all (not in violation of public policy); NOT child support; visitation; custody
iii.                Enforcement – enforced unless successfully challenged
iv.                Burden is

Ask if the client has significant connections with another state or can foresee establishing residence elsewhere; Do not guarantee enforceability
ii.                  Set out intent of the parties – applicability to separation, divorce, and death; Refer to the law – incorporate reference to the state code, attach a document of the code to the agreement, use the terms and definitions in the state code; include a choice of law provision
iii.                Attach financial disclosures as exhibits OR list them on a separate page with a recital that both parties have reviewed them (current income from all sources; potential future income sources; all outstanding debts and obligations; list of all property owned; provide copies of tax returns for 2-3 years; current investment statements; retirement account statements; use financial advisor to prepare financial disclosure exhibits)
iv.                State agreement is voluntary and fair
v.                  Establish rules governing property acquired before and during marriage – treat qualified retirement plans separately; consider gift-splitting provision for wealthy individuals
vi.                Alimony – consider structured obligation (increasing as marriage endures)
vii.              Consider exit bonus (with possible forfeiture) – settlement increases with length of marriage; forfeiture for contesting agreement
viii.            Life insurance
ix.                Sunset provisions
x.                  The signing – observe formalities; use two witnesses, notary public; try to have signed at least 30 days before wedding; etc