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Family Law
University of Nebraska School of Law
Frank, Alan H.

FAMILY LAW – Spring 2010
Table of Contents
1.      When Are Adult Partners a Family?
a.    Why Do People Get Married?
b.     Legal Consequences of Non-Married Adult Partners
c.     Recognition of Rights to Non-Married Partners
2.      Importance of Being a Family
a.    What Does It Mean to Be Married?
b.     Marital Property
                                                  i.      Ownership and Control of Wealth
                                                ii.      “New Property” 
                                              iii.      Daily Management and Control of Wealth
                                              iv.      Constitutional Limitations
                                                v.      Premarital Agreements
                                              vi.      Spousal Contracts During Marriage
c.     Violence Between Spouses
3.      Entering Ceremonial Marriage
a.    Introduction
b.     Formalities 
c.     Agreement to Marry
d.    Substantive Restrictions on Marrying
e.     Conflict of Laws
4.      Alternatives to Ceremonial Marriage
a.    Common Law Marriage
b.     Presumptions of Marriage and Putative Spouses
c.     Judicially Created Solutions
d.    Statutory Solutions – Domestic Partnerships, Civil Unions and Reciprocal  Beneficiary Relationships
1.      Divorce Grounds and Procedures
a.    Introduction
b.     Grounds for Fault Divorce 
c.     Defenses to Fault Divorce 
d.    Hal and Wendy – Fault Divorce Problem 
e.     Fault Divorce Procedure 
f.      No-Fault Divorce 
g.    Evaluating Divorce Reform 
h.    Covenant Marriage
i.       Effect of Divorce on Children
2.      Jurisdiction
a.    Divorce Jurisdiction
b.     Divisible Divorce
c.     Full Faith and Credit for Support Duties
3.      Child Custody
a.    Introduction
b.     Best Interests Standard
c.     Primary Caretaker
d.    Joint Custody
e.     Parenting Plans
f.      Judging Parents: What Makes Parents Unfit?
g.    Enforcement of Visitation
h.    Role of Children in Custody Disputes
i.       Child Custody Jurisdiction
4.      Property Division and Spousal Support?
a.    Overview
b.     Property Division at Divorce
c.     How Do We Decide What is Marital Property?
d.    Property Issues
e.     Marital Debt
f.      Spousal Support at Divorce
I. Marriage and its Alternatives
1. When Are Adult Partners a Family?
A.     Why Do People Get Married?
a.       Marriage implies commitment and by choosing not to make commitment, do not get social validation of the relationship (seal of approval of society norms and morals) – Regan
b.      Traditional family structure provides foundation to democracy and allowing rights to non-traditional families weakens democracy – Wardle
c.       Look to parent-child relationship and develop policy that protects that relationship – Fineman
                                                  i.      Focusing just on marriage puts non-married partners at a serious disadvantage
1.      Protection of Partners: Not extending protection to partners without marriage places partners in unequal positions at the dissolution of the relationship
a.       Hewitt Counter-argument: She COULD have just gotten marriage and then would have been protected
2.      Functional Argument: Can have the function of marriage and family and if it looks and acts like a marriage, why must we require formal ceremony
d.      Traditional definition of marriage is not realistic any more and does not reflect the needs of real families – Foster
B.     Legal Consequences of Non-Married Adult Partners
a.       Rights of Partners to Each Other: Absent common-law marriage statute party is not entitled to divorce-like remedies unless parties were legally married
                                                  i.      Hewitt v. Hewitt: Π and Δ were “married” in 1960 when Π became pregnant.  Δ told Π that no formal ceremony was necessary, that they were married, they told their families that they married and held themselves out to be married.  Π supported Δ in his education and establishment of his dental practice.  Π filed for “divorce” and ultimately asked for equal share of marital assets after long-term relationship of 15 years
1.      ISSUE: Whether ∏ is entitled to divorce-like remedies without having legal marriage?
2.      HOLDING: NO – A party is not entitled to divorce-like remedies unless parties were legally married
a.       Unmarried cohabitants may not recover an equal share of profits & properties accumulated by unmarried cohabitants during the period of cohabitation
b.      Court rejected ∏’s arguments:
                                                                                                                          i.      Δ promised he would share life, future, earnings, and property
                                                                                                                        ii.      Conduct of parties implied a contract entitling her ½ property acquired during relationship
                                                                                                                      iii.      Δ fraudulently assured her she was his spouse to secure her services
                                                                                                                      iv.      Δ was unjustly enriched by ∏’s provision of services
                                                                                                                        v.      ∏ detrimentally relied on Δ’s promise
c.       To allow a party to recover divorce-like remedies would contravene public policy
                                                                                                                          i.      Would de-legitimize the importance of marriage
                                                                                                                        ii.      Would weaken the institution of marriage and the support it offers society
b.      Rights of Partners to Persons Outside of Relationship: Unmarried cohabitants may be found to be members of the same family if it fits the definition of family within the statute and does not offend the policy behind the definition
                                                  i.      Braschi v. Stahl Associates Company (N.Y. 1989): Π and his partner lived together in a rent-controlled apartment with partner as lease holder.  After partner’s death, landlord attempted to terminate the lease agreement b/c under New York rent-control statute, protection only extended to “family” and under the traditional definition of family, Π did not qualify
1.      ISSUE: Whether non-married partners should be viewed as “family” in receipt of familial benefits?
2.      HOLDING: Unmarried cohabitants (same sex) may be found to be members of each other’s family
a.       Under the New York rent-control statute, Π qualified as “family” b/c a “family” should be “Two adults who were lifetime partners tied together both emotionally & financially”
b.      ELEMENTS
                                                                                                                          i.      Exclusivity and longevity of relationship
                                                                                                                        ii.      Level of emotional and financial commitment
                                                                                                                      iii.      Manner in which parties have conducted their everyday lives and held themselves out to society
                                                                                                                      iv.      Reliance placed upon one another for daily family services
c.       This definition would be consistent w/ purposes of rent control laws
                                                                                                                          i.      Ct may conclude the men were more than roommates since they were regarded by friends/family as spouses, they were financially tied together, and B1 was named beneficiary of B2’s insurance policy & primary legatee and co-executor of B2’s estate.
d.      NOTE: Court may have been more sympathetic in this instance b/c, as homosexuals, partners were unable to marry
3.      DISSENT: State interest included orderly succession of property & transition from gov’t regulation
a.       These interests are balanced ONLY when FAMILY member are defined using relationships based on blood, marriage, and adoption
c.       Zoning Ordinances: Government may prohibit the cohabitation of unmarried partners and their children through zoning ordinance if zoning is rationally related to expressed purpose and violates no provision of the Constitution
                                                  i.      City of Ladue v. Horn (MO 1986): Unmarried couple with children from previous relationships lived together in area zoned for single-family residence.
1.      ISSUE: Whether the ordinance banning non-married partners and children to live together in single-family home violated the federally-protected rights of the Δs?
2.      HOLDING: NO – There must exist a commitment to permanent relationship & perceived reciprocal obligation to support and care for each other
a.       Test of Constitutionality: whether the ordinance is reasonable and not arbitrary and bears a rational relationship to a permissible state objective
                                                                                                                          i.      Ladue’s zoning is rationally related to its expressed purpose and violates no provision of the Constitution (It did not act arbitrarily in enacting it)
1.      Purpose is SELECTION – If its not invidious or discriminatory against those not select its proper
2.      Its purpose is to promoted health, safety, morals, and general welfare in the city.
3.      Tool for gov’t to control population, traffic, pollution, other social problems
a.       Hazardous when used to select identity of population
                                                                                                                        ii.      Court applied traditional test and said that city had legitimate interest in zoning for single-family
1.      Defined “family” in a manner which comports w/history and traditional notions of family
b.      Parties never argued that the circumstances support an inference that they comprise a non-traditional family
                                                ii.      Village of Belle Terre v. Boraas (U.S. 1974): Court upheld zoning ordinance b/c it constituted valid land use legislation reasonable designed to maintain traditional family values and patterns
1.       Defined “family” as only certain closely related individuals but allowed 2 people to live together
2.      Ordinance involved no fundamental right
                                              iii.      Moore v. City of East Cleveland (U.S. 1977): Court stuck ordinance down for violating the freedom of personal choice in matters of marriage and family
1.      Case involved grandmother and children living together
2.      Statute defined a family as “only certain closely related individuals.”
a.       Couple w/stepchildren should be extended in this matter
3.      Distinguishable Belle b/c ordinance in Moore sought to regulate occupancy of its housing by slicing deeply into the family itself
a.       Constitution protects family b/c its so deeply rooted
                                              iv.      Borough of Glassboro v. Vallorosi (NJ 1990): Ten students lived together in one house, in violation of city ordinance because not related.  ∆ purchased home located in area & was moving her little brother & 9 friends into house for college. Claimed they exhibited the generic character of family
1.      HOLDING: Court applied a functional test to define family and that students qualified under zoning ordinance.
a.       “FAMILY”: Defined as one or more persons occupying a dwelling unit as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or functional equivalency
                                                                                                                          i.      City’s Purpose:  Maintaining stability & permanence throughout its residential neighborhoods
b.      Zoning ordinances cannot be used to prevent social decisions
                                                                                                                          i.      Ordinance must be reasonably designed to meet end goals of policy without extensive b

ft with little if marriage dissolved.
                                                                                                                        ii.      PROBLEM (P.39): H and W are married in 1970.  W brings $25,000 in stocks and during marriage H acquires $100,000 in partnership and house/investments of $250,000 all under his name.  What rights does W have?
1.      W only has rights over $25,000 that she brought into marriage
2.      H has ultimate rights over the rest because “title controls” (w/exceptions) so b/c it is in his name, it is HIS
a.       All H’s property is subject to claims of H’s creditors and W has no superior rights to their claim but they cannot go after her $25,000
3.      W can make possible argument that some of H’s property really belongs to her
                                                ii.      Murdoch v. Murdoch (Canada 1975): W and H operate ranch together, all in H’s name but W contributes through labor so wants rights to some part of the property
1.      W has no claim based on MWPA b/c all in H’s name
2.      W contends that all of her physical labor creates a trust in which she relied on H’s promise that she had some beneficial interest in the property and that he held in part for her benefit
a.       Express Trust: Actual written agreement between parties that extends promise to hold in her interest
b.      Implied Trust: While not in writing, H’s behavior lead her to believe and she detrimentally relied on his conduct and acceptance of her services that he held property in her interest
                                                                                                                          i.      There must be a COMMON INTENT between the parties that both parties intended for an agreement
3.      HOLDING: There is no evidence that there was a common intent between parties where H would hold property in W’s interest in exchange for W’s work on property
a.       It was W’s duty as a “ranch wife” to supply the services that she provided
                                                                                                                          i.      In dissent, Justice Laskin states that you do not need common intent to create a constructive trust because H would be unjustly enriched if he didn’t “pay” for W’s services that generated income – doesn’t include “ordinary” duties of a wife but in this situation, the work she performed on the ranch, she should be compensated
b.      Laws that regulate implied relationships outside of marriage do not usually apply to marriage
                                                                                                                          i.      EXAMPLE: If neighbors helped out each other, court would not assume that they did it out of the goodness of their heart or as part of responsibility as neighbor
                                              iii.      At common law, courts limited the interests in transfer w/presumption based on gender
1.      Presumption if W transferred to H, it was still hers and he was just holding it in trust while if H transfers to W, presumption that it was a gift
2.      PROBLEM (Page 44, 3): Stephanie receives $170,000 as inheritance and used to buy home with boyfriend, who later became husband.  Put home in Daniel’s name to avoid creditors.  Upon divorce, Daniel claims home as his own b/c in his name.  Court held that Daniel was holding it in trust for Stephanie, it would be unjust enrichment if Daniel got to keep what was presumably the “family home” during marriage
a.       Schuman v. Schuman, Nebraska decided that H put $19,000 that was clearly traceable back to H remained H’s separate property unless other partner can show that it was intended as gift
                                              iv.      Estate by Entirety
1.      Sawada v. Endo: Father involved in car accident and afraid that he would lose in settlement so he, with wife, conveyed house owned in tenancy by entirety, to sons.  Π got settlement against father and tried to set aside conveyance by Δ and wife so they could attach lien to property.
a.       ∏ would not have been able to reach property, even if father had not conveyed property b/c creditors cannot attach interest to tenancy held in entirety as both partners hold equally
2.      U.S. v. Craft: Federal law trumps state property laws so federal government can attach interest to property held in entirety b/c state law does not dictate right of federal law for IRS to attach
3.      Nebraska does not have Tenancy by Entirety – Neb. Rev. Stat. § 42-618
a.       Homestead Acts: Protects family homestead without same protection extended to tenancy by entirety
b.      Neb. Rev. Stat. § 40-101: Homestead, up to $60,000 cannot be reached by partner’s creditors
                                                                                                                          i.      Can force sale if worth more than $60,000 but family unit gets to keep $60,000
                                                                                                                        ii.      Subject to creditors but cannot be severed without joint consent of both parties