Family Law Overview, Part II


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Part of a series of lectures given to students in the University of Osnabrück's foreign law program.

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Family Law Overview, Part II

  1. 1. Intro to U.S. LawFamily Law and Related Topics Page 1
  2. 2. Dissolution of MarriageDivorceAnnulment and Legal SeparationAlimony and Property SettlementCustody of ChildrenChild Support Page 2
  3. 3. Grounds for DivorceCivil lawsuit in equityTraditional Grounds Other party was at fault Habitual drunkenness, adultery, physical cruelty, mental cruelty, abandonment, insanityModern Grounds – No Fault “irreconcilable differences” which have caused an “irremediable breakdown of marriage” Original no-fault statute from California Page 3
  4. 4. Michigan No-Fault Statute Page 4
  5. 5. Procedural RequirementsDomicile 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. Page 5
  6. 6. Michigan Residency Requirement Page 6
  7. 7. Other Dissolution FormsAnnulments – legal recognition the marriagewas invalid. This is different than a religious annulmentLegal Separation – does everything a divorcedoes except: The parties cannot remarry (they are technically still married) Done for a variety of reasons (religious, tax, fringe benefits, etc.) Page 7
  8. 8. MI Annulment Law Page 8
  9. 9. Legal Separation RevocationNote – legal separation is often referred to as“divorce from bed and board”.It takes another court action to revoke theseparation agreement. Page 9
  10. 10. AlimonyPayment of sum by one spouse to another. Sometimes referred to as spousal supportLump sum or periodic paymentsTerminates upon death of spouseCan be modified upon showing of changedfinancial circumstances Page 10
  11. 11. Property SettlementGoal – equitable division of marital propertyLump sum or awards of specific propertyBased 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. Page 11
  12. 12. Settlement v. AlimonyTaxable? Modifiable? Property settlements Property Settlements are not are not Alimony is Alimony isDischargeable inBankruptcy? Property settlement obligation is Alimony is not Page 12
  13. 13. Determining AlimonySome states allow for fault to be considered, someprohibit 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. Page 13
  14. 14. 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 Page 14
  15. 15. Review: Finding StatutesFinding 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. Page 15
  16. 16. Michigan ExampleCourt must strive for a “fair and equitable”division of marital property and of any increasesin marital assets that may have occurredbetween the beginning and end of the marriage.The Court is NOT required to follow rigid rulesor a formula. Fair and equitable under the circumstances is the test.See Carlson v. Carlson for example. Page 16
  17. 17. Carlson v. CarlsonWhat decisions of the trial court is the court ofappeals being asked to reconsider?What standard did the appeals court use toreview the lower decision?What factors must be considered when dividingmarital property? where do these factors come from?Why does the court ultimately rule for the wife? Page 17
  18. 18. Appellate Review StandardDe 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 managementquestions) Page 18
  19. 19. Settlement AgreementsThe division of property in most instances is aresult of a settlement agreement. These must be voluntary These are usually incorporated into the divorce decree These are difficult to set aside Page 19
  20. 20. Property Subject to DivisionVirtually anything of value is considered.The Obvious – houses, cars, stocks, bonds,accountsAlso – pension rights, disability payments andmedical insuranceAnd Increasingly Common - “good will”generated by business or professional practice“Human Capital” - growing trend Page 20
  21. 21. Custody of ChildrenCourts do not distinguish between custody aspart of divorce and custody between twounmarried people.Legal Custody Right to make all decision pertaining to the childs upbringing, including education, health care, religion, growth and development. Usually lasts until age of majority. Page 21
  22. 22. Presumption and FactorsPresumption in favor of birth parentsPresumptions as between ParentsReligion and RaceLifestyles of ParentsPreference of the Child Usually done outside of court by judge Some states have age limit Page 22
  23. 23. Visitation RightsGenerally 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. Page 23
  24. 24. Joint CustodyChild lives on a rotating basis with each parentParents have shared decision-making powerPermitted 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 otherMust distinguish between joint legal andphysical custody. Page 24
  25. 25. Enforcement of Custody OrderParental 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 Page 25
  26. 26. Child Support: OverviewSupport order usually runs to age of majority Can be longer by agreementAmount 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 justicerequires. Page 26