FAMILY LAW OUTLINE
BACKGROUND
Societal Change in Family Law Since the 1960s
Women’s rights movement
Children’s rights movement
Gay and lesbian rights movement
No-fault divorce- focus on ramifications, not proceedings, of divorce
Equitable distribution of marital property
Troxel v. Granville (2000)
J. O’Connor: “The demographic changes of the past century make
it difficult to speak of an average American family. The composition of families varies greatly from household to household.”
Fundamental Questions:
What is a family?
How should the law regulate family life?
When should the law keep its hands off?
Lawyer’s Primary Roles
Advisor
Advocate
Negotiator- 90% of all divorce decrees include separation
agreement, cts agree to what the parties say. Litigating about more than just money- family, family structure, child custody
Evaluator
Family Lawyers’ New Roles
Mediator
Arbitrator
Collaborative
Guardian Ad Litem (GAL)
Parent Educator
Parent Coordinator
Basic Ethical Obligations to the Client
Competence- A lawyer shall provide competent representation to a
client, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Diligence- A lawyer shall act w/ reasonable diligence and
promptness in representing a client.
Informing the client- A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation.
Communicating w/ the client- Reasonable communication b/t the
lawyer and the client is necessary for the client effectively to participate in the representation.
Avoidance of fraud- A lawyer may not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation. Fraud is conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
Recurrent Ethical Pitfalls
Client confidences- not reveal info learned through representation
Conflict of interest- shouldn’t represent both parties to a divorce
Obligations to the Courts, 3rd parties, and opponents
Obligations to the parties’ children- lawyers don’t represent
children, but should steer parents to keep children’s interests in mind
Domestic misconduct by lawyers – sexual relations are absolutely
prohibited
Model Rule 8.4
It is professional misconduct for the lawyer to:
b) commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects
c) engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation
d) engage in conduct that is prejudicial to the administration
of justice
Intro Questions:
What interests does the state have in regulating the creation,
Maintenance, and dissolution of the marriage re
Very intrusive-divorce
Strong tradition of marriage and divorce regulation
State has strong authority
Extensive public regulation of the relationship co-exists w/ social
and legal norms describing marriage as a private realm of family life which the state cannot enter
à2 changes leading to deregulation of marriage:
Transformation of understanding of central purposes of
marriage- ability to facilitate the bonding of intimate adult partners
Recognition of significant constitutional limitations on gov’t
power over family life- make marriage more gender neutral and articulate strong public reasons for marriage laws that had previously seemed natural and self-evident
MO Rev. Stat. Chapter 451: Marriage Act (SUPP pg. 9)
Formal Requirements
Licensure and solemnization (ceremony): §§451.040, 050, 080, 100, 110
If the parties fail to heed a formal requirement the marriage
nonetheless remains valid. Formal requirements are generally held to be directory (or regulatory) only, rather than mandatory
get a marriage license and have a ceremony
sets social norms-what ppl expect, do on their
own, no expectation that they’ll be enforced
