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Today’s Lecture: Family Law 1. Rules for Entering and Exiting Marriage 2. Equitable Distribution 3. Alimony

Lecture Organization: • Class Announcements • The Legal Formation of Marriage • Grounds for Divorce • Equitable Distribution • The Marital Term and More Complicated Issues • Alimony Time

Class Announcements • 1. Online lectures • -- current • -- the last two lectures on criminal law will most likely NOT be posted (will run out of time) • 2. Quiz will be up tonight, covering today’s lecture • -- please remember that it has reading questions • 3. Final exam • -- you are welcome to bring your book in, but nothing else

Any Questions? Pre-final quiz Paper Deadline Due Date

Class Announcements • 3. Your Paper • -- 1 inch margins • -- New York Times font, 12 pt. (no courier) • -- page numbering • (number from the start of the text to the end of the text. Do NOT number cover pages or any back material) • -- don’t put the things in binders! • Grade penalized one half step for missing formatting requirements Time

The Legal Formation of Marriage • 1. To form a marriage, you need certain legal formalities: A legal ceremony Answer: If you get an annulment, the marriage never happened; if you get a divorce, the marriage happened for a period of time An exchange of vows Question: What does a defense to the formation of marriage get you? Question: What is the difference, theoretically? Answer: An annulment, not a divorce Example, Mick Jagger No defenses

The Legal Formation of Marriage • 2. There are several common-law defenses to the FORMATION of marriage. • -- we will look at only four • -- because they are based upon the common law, each state may have amended them. Consider these “general rules” • -- remember these grounds, if proven, give you an annulment not a divorce

Time The Legal Formation of Marriage • -- you have another living spouse from a marriage that was not terminated • -- must be incurable, not matter if naturally or artificially caused • -- wife is pregnant by someone other than the spouse at the time of marriage • -- an infamous offense that the spouse did not know about polygamy impotency There are “defenses to the defenses” (e.g., condonation) pregnancy Criminal conviction

Grounds for Divorce • 1. Once a marriage is lawfully formed, the only way to end it is with divorce or death. • 2. In the old days, you needed CAUSE to get a divorce • -- you couldn’t just get one at your election; you had to show that your spouse did something wrong • -- in theory, you could sue for divorce and lose; the judge would make you stay married • (hence the expression, “I won’t give you the divorce”) • 3. This is no longer the case. Anyone can get divorced just because they want to (e.g., brain no longer “lights up”)

Grounds for Divorce • 4. There are three types of grounds for divorce: • -- fault-based divorce may be able to get you additional things, such as “alimony” or “punitive alimony” [explained later] • -- but, as a general rule, there really is not much difference today between a fault and no-fault divorce • … let’s examine the fault-based grounds more closely Fault-based Non-fault based

Grounds for Divorce • -- having sex with someone other than your spouse • -- proof requires corroboration [hard to prove] • -- if proved, alimony is forfeited • (1) voluntary cohabitation (“sex”) after knowing about it; • (2) more than 3 years old at the time of the filing • (3) “unclean hands” [the other side did it, too] • (-- but must be uncondoned & within 3 years!) Adultery (Fault based) Specific defenses

Grounds for Divorce • (ordinary cruelty is not enough!) • definition: continued cohabitation in the relationship is such a risk to physical safety/mental health, to render the situation unsafe or unendurable • (cannot be based upon denial of sex) • -- provocation Extreme Cruelty (Fault based) Question: What is Peg Bundy sued Al Bundy for divorce, alleging extreme cruelty as the grounds? Would she win on those grounds? Specific defenses

Grounds for Divorce • -- two types: • Definition: six continuous months with intent to terminate the marriage • 1. you are physically present in the dwelling • 2. but not having sex for six continuous months • definition: willful, total and unjustifiable suspension of all marital duty and relationship Desertion (non-fault based) actual constructive

Grounds for Divorce • -- living separate and apart • -- 1 continuous year, without interruption • -- no sex • 1. BOTH parties agree that the marriage is irretrievably broken • (usually has to be admitted in the pleading) “Separate and apart” (non-fault based) Irreconcilable Differences (non-fault based)

Application Assume we have two people who are married Ben Sally

Application Question: If you were Sally’s lawyer, what would you advise her? Won’t agree to it Wants the divorce Ben Sally

Application Time • Bad Advice: • have an affair, or be extremely cruel • commit desertion • (stop having sex while living together) • (announce your intention, leave for 6 months & file) • GoodAdvice • 1. move out for one continuous year, no sex. • THE POINT: anyone can get a divorce these days. One side can no longer block it. Won’t agree to it Wants the divorce Ben Sally Answer: (a) it doesn’t’ work -- it gives HIM grounds, not you! (duh). (b) may hurt your financial situation if he changes his mind Answer: (a) it doesn’t’ work -- it gives HIM grounds, not you! (duh). Question: Why is this bad advice? Question: What would be good advice? Question: Why is this bad advice?

Equitable Distribution -- Having just examined the grounds for marriage, annulment & divorce, let’s look at the consequences of divorce -- The legal consequences are primarily financial -- consider these two scenarios … Scenario-1: A CEO of a self-made corporate giant divorces his wife after 30 years of marriage. He is worth $500 million. What should she receive? Scenario-2: Paul McCartney is worth $500 million. He divorces his wife after 4 years of marriage. What should she receive?

Equitable Distribution • -- possible solutions • The person who created the wealth gets to keep it? [value creator logic?] [capitalism logic?] • Pay each according to the market value of the labor during the marriage [employee logic] • -- consider this scenario: • -- notice that there may be a cognitive picture inside your head at the time you think about these scenarios … Question: What do you think about that? Question: What’s wrong with this one? Scenario-3: Burt Reynolds marries Lonnie Anderson. Burt goes bankrupt during the marriage. Lonnie is doing fine. How much money should Lonnie have to pay for Burt’s debts?

Equitable Distribution • -- possible solutions • The person who created the wealth gets to keep it? [value creator logic?] [capitalism logic?] • Pay each according to the market value of the labor during the marriage [employee logic] • -- consider this scenario: • -- notice that there may be a cognitive picture inside your head at the time you think about these scenarios … Scenarios 1 and 2

Equitable Distribution • -- possible solutions • The person who created the wealth gets to keep it? [value creator logic?] [capitalism logic?] • Pay each according to the market value of the labor during the marriage [employee logic] • -- consider this scenario: • -- notice that there may be a cognitive picture inside your head at the time you think about these scenarios … Scenario 3

Equitable Distribution • -- how the law generally resolves this • your spouse is your partner, not an employee • anything of value that accrues during the time of marriage is split 50-50, unless there is an agreement to the contrary (prenup) • this is the way that all partnerships work (e.g., running a bar or business) • However, the logic of this means that any debt or loss accrued by the partnership should also be split 50/50 (if we are applying this principle fairly) • (accounting principle: liabilities follow assets) Partnership-logic

Equitable Distribution • 1. American Law has two basic systems for dividing property during a divorce: • -- more liberal rule. Everything each side has is thrown into the pot for division. No (or very little) separate property • -- most states do NOT have this • -- majority of states use this idea • -- only MARITAL property is split 50/50; some property is not “marital,” it is separate • .. Let’s take a look Community Property Equitable Distribution

Understanding the Marital Estate Several exceptions! T-1 Date of Marriage Separate property Marital property

Understanding the Marital Estate Question: Is it more valuable to get an annulment or a divorce? Question: Assume Al Davis bought his football team during marriage. In divorce, who owns it? Question: Assume that you buy a new car during marriage and title it in your own name. Your spouse never drives it. Who owns it in divorce? Answer: In theory, annulment [mention Mick Jagger] Question: Assume you buy a house one day before you get married, and both you and your spouse live in it. Who owns it in divorce? Several exceptions! Question: Let’s say your spouse gets into an auto accident during divorce and gets a tort settlement. Who owns it in divorce? • Personal injury awards: • economic loss is marital • non-economic is separate Answer: Trick Question! There is a special rule for personal injury awards T-1 • Example: • putting separate funds into a joint checking account • anything where both sides have control over the asset Date of Marriage Separate property Marital property “Commingling” inheritance gifts Putting the funds into the marital estate Unless “commingled!”

Equitable Distribution • -- whether a debt is “marital” is determined using the same principles as for an asset • -- however, there is an additional rule here that is a vestige of the past and that is rather unfortunate • -- if the debt is considered “waste,” it belongs solely to the spouse that incurred it “Marital debts” The doctrine of “waste” Note that there is no corollary principle for assets. (The one who created the excess keeps it)

Equitable Distribution Let’s say the husband has gambling debts of $10,000. Who should have to pay them using the doctrine of waste? • -- whether a debt is “marital” is determined using the same principles as for an asset • -- however, there is an additional rule here that is a vestige of the past and that is rather unfortunate • -- if the debt is considered “waste,” it belongs solely to the spouse that incurred it “Marital debts” The doctrine of “waste” Note that there is no corollary principle for assets. (The one who created the excess keeps it)

Equitable Distribution Let’s say the wife has credit card charges for excessive spending at the shopping mall ($50,000). Who should have to pay that using the doctrine of waste? • -- whether a debt is “marital” is determined using the same principles as for an asset • -- however, there is an additional rule here that is a vestige of the past and that is rather unfortunate • -- if the debt is considered “waste,” it belongs solely to the spouse that incurred it “Marital debts” The doctrine of “waste” Note that there is no corollary principle for assets. (The one who created the excess keeps it)

Time Equitable Distribution • -- historically (and perhaps contemporaneously), the doctrine of waste tends to disfavor men. Bad leisure expenses are more likely to be born by men alone, not making women pay for them (just a tendency). • (there still is a degree of gender bias and patriarchy in the system) • -- also, the doctrine of waste is a contradiction. They are using different accounting principles for liabilities and assets. If Enron did this, it would be a kind of fraud. The same rules that divide assets should apply to liabilities

The Marital Term & More Complicated Issues • -- Having just examined the principles of equitable distribution, we now need to add another aspect. • -- When does the marriage end for equitable distribution purposes? • 1. The point where the marriage is “irretrievably broken” • (the straw that broke the camel’s back) • 2. Typically, this is: • (a) the point of filing • (b) the point of separation The starting point: Proper exchange of vows The ending point: Not as clear

Understanding the Marital Term T-1 T-2 Freedom Vows

Understanding the Marital Term adultery separation filing T-1 T-2 Freedom Vows Answer: This point is litigated! Judge decides under clearly erroneous and abuse of discretion standard. Should be the adultery (without knowing more facts) Question: When does the marital estate end for equitable distribution purposes? Question: Why is this important? Asset Growth!

Understanding the Marital Term Lottery!! Time sex sex sex adultery abuse filing separation T-2 Vows Question: Assume that you are a lawyer for a rich male who is going to get married. She won’t sign a prenup. What advice would you give regarding his finances and purchasing the marital home? Question: Assume that you are a lawyer for a debt-heavy couple. She calls you shortly after T-2 and asks for advice, what would you say? Debts going down Answer: If it is “after the straw that broke the camels back” (as indicated above), it is separate Answer: At the point of filing. Anything of value gained since the vows are split 50-50 Question: When does the marital estate end for equitable distribution purposes? [Mention of your client. Age-mismatch. Long separation. Advice]. Question: When about hitting the lottery? [Mention student loans]

Alimony -- Has nothing to do with marital property. It is not a property concept. (Not something that is “mine, yours”). -- It is sort of like “welfare” -- it originated in the patriarchal era of marriage, but is now pretty much a gender neutral concept -- but it is on its way out (dying). Alimony is much harder to get today because of the gender revolution and because marriage is now so different -- intended goal: preserve the living standards of the economically-dependent spouse. (Whatever standard of living he or she is used to)

Alimony • -- Three kinds of alimony: • -- used for fault based divorces. • -- also called “rehabilitative” alimony. • -- given for a temporary time period so the spouse can get back on his or her feet (sometimes given for college). • -- extremely rare these days. One side pays the other for life. Punitive alimony Temporary alimony Permanent alimony

Time Alimony • -- Alimony is awarded based upon the following factors: • (a) length of marriage • (b) fault-based divorce • (c) need for rehabilitation (wants to go to college, etc) • (d) comparative health of the parties • (e) inequities that exist after equitable distribution!!!!

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