family law overview, part ii

Intro to U.S. Law

Family Law and Related Topics

Dissolution of Marriage

Divorce

Annulment and Legal Separation

Alimony and Property Settlement

Custody of Children

Child Support

Grounds for Divorce

Civil lawsuit in equity

Traditional Grounds

Other party was at fault

Habitual drunkenness, adultery, physical cruelty, mental cruelty, abandonment, insanity

Modern Grounds – No Fault

“irreconcilable differences” which have caused an “irremediable breakdown of marriage”

Original no-fault statute from California

Michigan No-Fault Statute

Procedural Requirements

Domicile Requirement

At least one spouse must be permanent resident of the state.

Durational Requirement

Varies from state-to-state (6 weeks to 2 years)

Most common is 6 months

Some forms of Alternative Dispute Resolution are used to assist with settlements.

Michigan Residency Requirement

Other Dissolution Forms

Annulments – legal recognition the marriage was invalid.

This is different than a religious annulment

Legal Separation – does everything a divorce does except:

The parties cannot remarry (they are technically still married)

Done for a variety of reasons (religious, tax, fringe benefits, etc.)

MI Annulment Law

Legal Separation Revocation

Note – legal separation is often referred to as “divorce from bed and board”.

It takes another court action to revoke the separation agreement.

Alimony

Payment of sum by one spouse to another.

Sometimes referred to as spousal support

Lump sum or periodic payments

Terminates upon death of spouse

Can be modified upon showing of changed financial circumstances

Property Settlement

Goal – equitable division of marital property

Lump sum or awards of specific property

Based upon contributions:

Monetary and service

Homemaking and childrearing are given value

Court will also look at duration of marriage and what property was brought into the marriage.

Can be voluntary or contested.

Settlement v. Alimony

Taxable?

Property settlements are not

Alimony is

Dischargeable in Bankruptcy?

Property settlement obligation is

Alimony is not

Modifiable?

Property Settlements are not

Alimony is

Determining Alimony

Some states allow for fault to be considered, some prohibit it, others give wide discretion to court.

Typical factors:

Financial situation of requesting party,

time necessary for requesting party to re-enter workforce,

standard of living est. during marriage,

duration of marriage,

age/condition requesting party,

financial status of non-requesting party.

Determining Property Settlements

Goal – equitable distribution of marital property

Courts are given wide discretion to achieve this goal.

Common factors in contested disputes:

Duration of marriage

Prior marriages

Prenuptial Agreements

Age, health, earning power of parties

Alimony received

Review: Finding Statutes

Finding Statues Online:

each state publishes a non-annotated version of laws online:

usually some kind of search engine is provided inside the website.

Westlaw also has both annotated and non-annotated statutes.

You can conduct a normal “term search” or look through the Table of Contents.

Michigan Example

Court must strive for a “fair and equitable” division of marital property and of any increases in marital assets that may have occurred between the beginning and end of the marriage.

The Court is NOT required to follow rigid rules or a formula.

Fair and equitable under the circumstances is the test.

See Carlson v. Carlson for example.

Carlson v. Carlson

What decisions of the trial court is the court of appeals being asked to reconsider?

What standard did the appeals court use to review the lower decision?

What factors must be considered when dividing marital property?

where do these factors come from?

Why does the court ultimately rule for the wife?

Appellate Review Standard

De Novo (for questions of law)

appeals court can ignore lower court legal conclusions.

Clearly Erroneous (for questions of fact)

appeals court will not disturb lower court findings of fact unless they are firmly convinced that a mistake was made.

Abuse of Discretion (for trial management questions)

Settlement Agreements

The division of property in most instances is a result of a settlement agreement.

These must be voluntary

These are usually incorporated into the divorce decree

These are difficult to set aside

Property Subject to Division

Virtually anything of value is considered.

The Obvious – houses, cars, stocks, bonds, accounts

Also – pension rights, disability payments and medical insurance

And Increasingly Common - “good will” generated by business or professional practice

“Human Capital” - growing trend

Custody of Children

Courts do not distinguish between custody as part of divorce and custody between two unmarried people.

Legal Custody

Right to make all decision pertaining to the child's upbringing, including education, health care, religion, growth and development.

Usually lasts until age of majority.

Presumption and Factors

Presumption in favor of birth parents

Presumptions as between Parents

Religion and Race

Lifestyles of Parents

Preference of the Child

Usually done outside of court by judge

Some states have age limit

Visitation Rights

Generally grated to non-custodial parent

Only denied when court finds visitation could harm child.

Court could still grant supervised visitation

Using “best interest of child” standard,

courts can grant visitation rights to extended family members.

Joint Custody

Child lives on a rotating basis with each parent

Parents have shared decision-making power

Permitted in a majority of states

Courts in a few states have ruled this not to be in the best interest of the child

Key consideration is willingness of parents to cooperate with each other

Must distinguish between joint legal and physical custody.

Enforcement of Custody Order

Parental Kidnapping Prevention Act

Makes clear that Full Faith and Credit Clause of the Constitution applies to custody orders.

Thus, parent cannot take child to another state to avoid custody order.

Strict enforcement is common

In re Clausen

Child Support: Overview

Support order usually runs to age of majority

Can be longer by agreement

Amount of support is set by statutory guidelines

General test is the amount should be reasonable considering the financial limits of the parents.

Reasonable needs include clothing, food, education, medical care and entertainment.

Court can modify the award when justice requires.

family law overview, part ii

Education