1. UNIT 5: Family Law Chapter 34 Separation, Divorce, and Custody

2.  This chapter covers procedures for ending a valid marriage through separation or divorce, as well as the many legal issues raised by divorce, including child custody, alimony & child support, & property division  If parents remarry or find a new life partner, new relationships are created for stepparents & children  All of these changes involve the law

3. Property Ownership  Separate property: property owned by each spouse before the marriage or individually awarded gifts and inheritances.  Marital property: property gained during the marriage.  Community property v. equitable distribution. What is the difference in the systems?  Problem 31.6

4. The case of the Family Business After 10 years of marriage, George wants a divorce. Is the restaurant separate property? What are the options for dividing the property?  George has owned a restaurant since inheriting from his father at 20 yo. George is 30 and is going to marry Gigi. The restaurant is doing ok, grossing about $550,000 per year.  Gigi helps manage the restaurant after the marriage. Her creative menu planning and work with a new chef she found helps cause business to boom. In 2 years, the business is grossing $1 million per year.

5. Prenuptial Agreements  The attempt to decide how property will be divided in the event of divorce before entering into marriage.  Think of a celebrity, now think of a potential spouse for that celebrity.  Make a list of 15 items they probably each own.  What should be marital and separate?

6. What can make a prenup invalid?  Duress: you have 24 hours to sign the day before the wedding.  Unconscionable: The husband is not represented but the bride has an attorney who drafted the prenup.  You may not limit children’s rights or decide custody in a prenup – separate pocess.  Sunset clause: after something happens your inheritance increases, ex. Birth of a child.

7. Privileged communication  Problem 31.7

8. Violence Against Women Act  Passed in 1994 with help from then Senator Biden  Creates many new requirements for rape investigation and prosecution and domestic violence protection.  Examples include no cost rape kits for victims, increased funding for hotlines and police protection.  Women who gained citizenship in marriage may no longer be deported for divorcing due to domestic violence.

9. Orders for Protection  May be civil or criminal. Criminal filed by State’s Attorney.  Essentially a “no contact with me” order from the court.  No fee to file a Petition for an OFP.  May be filed separately or as part of a divorce proceeding.  Children may be included or visitation may be required.  Penalties for violating can be misdemeanor or felony depending on the nature.

10. Draft a Petition for an OFP  Provide a list of questions you might have for your client.  What advice do you have?  Draft the Petition. We will discuss summons and cover sheets in class that accompany the Petition.

11. Marriage Problems  Married couples may encounter difficulties as a result of numerous social, economic, & personal factors Conflicts w/in-laws or relatives Job & career pressures Adultery Conflicts about children Sexual problems Breakdowns in communication Alcohol/drug abuse Money problems Loss of shared goals or interests

12.  When couples are unable to resolve problems on their own, they may seek help from outside sources, such as friends, family, or clergy  Major differences may require the couple to seek the help of a marriage counselor, psychologist, or social worker A marriage counselor can help them explore the reasons for their problems &, ideally, work out a solution

13. Separation and Divorce  Some couples are unable to resolve their differences & choose to either separate or divorce When a couple separates, they remain married but live apart; short or long time; still legally married A divorce is a court order that legally ends a valid marriage; once a divorce is final, each partner may legally remarry

14.  In fact, state laws play a great role as to how & under what grounds a couple can obtain a divorce  Although divorce legally ends a marriage, the two parties might still be responsible to each other financially, especially if children are involved

15.  Separation Due to the many financial, legal, & emotional hardships that come with a divorce, most states require that couples seeking this option enter a period of separation During this time, both spouses have time to consider the consequences of ending the marriage & to get their affairs in order so that they can go on w/their separate lives Also helpful to couples that have kids

16.  Some couples won’t consider divorce for religious or other reasons  Sometimes the couple needs time apart to consider the future  A separation rather than a divorce may be the best option

17.  A separation agreement is a written document that sets out the couple’s agreed-upon terms for child custody & visitation, child & spousal support, division of property, etc. Often the result of mediation Can say anything both parties want it to say Does not have to be approved by the court although can be (can only be altered by court or if both couples agree) If signed by both, it is a legally enforceable contract; if not followed, 1 party can take the other to court Usually forms the basis for the final divorce decree (court order)

18.  Divorce > 1 million couples are divorced each year in U.S. About ½ of all marriages end in divorce The process by which a couple legally ends their marriage & divides their property ○ Legal relationship is not ended ○ May be continuing financial obligations, & if there are children, continuing rights & responsibilities that the parents must share

19.  Ending a marriage can be expensive Legal fees (or Pro se (do-it-yourself kits); classes; Internet), alimony, child support payments, cost of maintaining 2 households Emotional cost on family, friends, work Long-term effect on life & kid’s lives  Because of the difficulties that arise, mediation is often recommended or required – the presence of a neutral 3 rd party to assist couples in identifying, confronting, & solving problems

20.  2 nd or 3 rd marriages present additional difficulties Each partner may bring in problems left over from a previous marriage There may be alimony, child support payments, debts to resolve Children & parents from previous marriages often form a “blended family” Children gain stepparents/siblings; spouses acquire stepchildren

21.  At 1 time, most states allowed divorce only if 1 spouse could show that the other spouse had done something wrong or was at fault  Typical grounds: Adultery – sexual intercourse bet. a married person & someone other than his/her spouse Desertion – leaving one’s spouse w/no intention of returning Mental cruelty – acts of emotional abuse against one’s spouse Physical cruelty – acts of violence or physical abuse against one’s spouse Insanity – mental illness

22.  Proving that 1 spouse was at fault was difficult  Divorce used to cause great embarrassment  A finding that 1 spouse was at fault would prevent him/her from receiving any support after the marriage ended

23.  Most states now have a no-fault divorce system A spouse doesn’t have to prove that the other spouse did something wrong Instead, the husband or wife has to show only that there are irreconcilable differences ○ This means that the marriage has completely broken down & is beyond repair Many states also allow divorce when a couple can show that they voluntarily lived apart for a certain period of time, whether or not it was a formal period of separation Some people say it is too easy to get a divorce now  high divorce rates; thus, some states have lengthened the time it takes to get a no-fault divorce

24.  In 1997, Louisiana passed a law enabling couples who are planning to marry to choose a covenant marriage instead of obtaining a regular license to marry Couples choosing a covenant marriage agree in advance (in writing) to make no-fault divorce more difficult to obtain  Under traditional marriage laws, a couple must separate for 6 months before getting a no-fault divorce  To end a covenant marriage by no-fault divorce, the couple must separate & live apart for 2 years

25.  Covenant marriages try to encourage lifelong commitments by both partners, thereby aiming to reduce the divorce rate, by limiting access to relatively easy divorces  Couples who are already married also have the option to convert their existing marriage to a covenant marriage

26. Child Custody  Once a divorce is final, parents must decide who will have legal responsibility for the children—this is called custody The parent who gains custody becomes the primary provider & guardian, while the other parent, the noncustodial parent, is granted visitation rights & may be responsible for some financial support  In 2000, > 25% of minor children in the U.S. were living w/single parents—many of these situations were the result of divorce

27.  Custody decisions are important because the parent w/custody decides most aspects of the child’s life, such as where the child will live & go to school  Custody may be temporary or permanently awarded to 1 parent  It is rarely changed

28.  In some cases divorced parents can both remain primary guardians of their children by obtaining joint custody Both parents have full responsibility for the child’s supervision; both have an equal say in important issues, such as schooling & religion; child may live part-time w/each parent; most courts are unwilling to approve a joint custody request unless the parents can demonstrate an ability to work well together

29.  Tender Years Doctrine - Traditionally the courts presumed that young children were better off w/their mothers Today, most courts have laws that require courts to treat men & women equally in custody disputes In reality, some judges still favor the mother, especially if the child is young

30.  If a couple is unable to agree on a custody decision, the court awards custody based on the best interests of the children Courts look at factors such as: ○ Youth’s actions in the home, school, & community ○ Emotional & economic stability of the parents ○ Which parent has stronger bonds w/the child ○ Which parent has been the primary care giver ○ Courts also consider the child’s desires – especially as they get older (12) ○ Courts also can assign a social services agency to study the parents & child(ren)

31.  Kinship Care - Increases in substance abuse, divorce, incarceration, & other family & community crises have resulted in many grandparents & other relatives raising children whose parents can’t In 2000, > 2.4 million grandparents reported that they had primary responsibility for meeting their grandchildren’s daily needs

32.  Many states have passed laws that allow grandparents to petition for visitation rights if the child’s parents will not voluntarily grant visitation to them Challenges to these laws brought by parents have been upheld in many states

33.  In Troxel v. Granville (2000), the U.S. Supreme Court struck down a WA state law that allowed visitation by any person who could show that such visitation would be in the best interests of the child The Supreme Court was concerned that such a broad granting of visitation rights to 3 rd parties—even to family members, including grandparents—would undermine a parent’s fundamental interest in the care, custody, & control of his/her children The Court was concerned that this statute didn’t give proper deference to a parent’s wishes, but instead placed a burden on the parent to prove that a 3 rd party’s wishes to see his/her child would not be in the child’s best interest

34.  Some custody disputes are so bitter, that 1 parent takes the children from the other parent & hides them This may involve moving to another state; or they may move constantly to avoid being found  The Federal Parental Kidnapping Act of 1980 prevents parents who abduct their children from getting new custody orders in a different state It also provides resources to help custodial parents locate their missing children

35.  The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) has now been passed in all 50 states A custody decree entered in 1 state is valid in all states A parent w/o custody can’t remove his/her kids from their home state & attempt to obtain a different custody order in another state Most states have statutes that make parental kidnapping—taking or hiding a child from a parent who has custody—a crime

36. Alimony, Property Division, and Child Support  The distribution of money & possessions is a highly debated topic during a divorce—who gets the car and the house? This type of decision is called property division  The final divorce decree will also involve an agreement about support to one of the spouses—alimony—as well as child support

37. Stepparents  When a divorced person marries a person with children, he or she becomes a stepparent Stepparents are not considered parents unless they have permission from the biological parents & legally adopt the child or children