FAMILY LAW OUTLINE FOR 97-98.
By Samuel Taylor

I. BEING A FAMILY. OWNERSHIP AND CONTROL OF PROPERTY DURING MARRIAGE
Family unit or family entity.
B. MARITAL PROPERTY (i.e., ownership while still married) (p. 8)
The marital property systems of western nations today are divided into two types
1. Common law system. Real property. Personal property &endash;. Gifts - gifts to the spouse or marital estate.. Modifications in the common law scheme. Married women's property acts. The title system and the possibilities of equity
. Community property
. Oregon Statutes - ORS 108.010-108.100 on pages 56-57 of supplement.
. Daily Management of Property and Support Duties During Marriage.
. Necessaries - enforcing duty of support (from husband normally).
. Public benefits
. Oregon Statutes on pages 56-58.
C. MARRIAGE AND THE LAW OF GENDER-BASED DISCRIMINATION AND SPOUSAL CONTRACTS DURING MARRIAGE (p. 56).
1. Choosing Domicile
. Additional Materials Concerning Liability for Necessaries.
. US Supreme Court Decisions on Gender Classifications
. Spousal Contracts (prenuptial, antenuptials, etc. &endash; pp. 69-81)
. Oregon Statutes pg. 58-59
D. DOMESTIC VIOLENCE (p. 88-111)
1. Violence Between Spouses
. Constitutional Decisions (MORE Equal Protection Classifications).
. Historical and Social Background
. Oregon Statutes pages 49 to 53
II. DIVORCE (pp. 265-587). GROUNDS. The Traditional Divorce System. pg. 272.
1. Fault Divorce.
. GROUNDS FOR DIVORCE (see pp. 283-285 &endash; see also pp. 274-275 NH statute)
. DEFENSES TO DIVORCE (see pp. 285-288).
C. DIVORCE PROCEDURE UNDER THE FAULT SYSTEM (pp. 289-292).. THE ADOPTION OF NO-FAULT DIVORCE.
1. Uniform Marriage and Divorce Act (p. 295).
. Cases Defining Irreconcilable differences:
. Backlash against no-fault divorce (pp. 315-329)
. Oregon Statutes
III. THE ECONOMICS OF DIVORCE (pp. 315-446). INTRODUCTION
2. Criticism of No-Fault Economics (single mother issue).
B. PROPERTY DIVISION AT DIVORCE.
1. Title-based distribution (p. 329 &endash; see Murdoch)
. Pure Equitable Distribution (p. 330)
. Marital Property Systems (p. 330 &endash; most common system).
. UMDA ¤ 307. separate alternatives for property division (p. 331).
. The Uniform Marital Property Act
. Oregon ("Marital Property" state w/ a twist)
. Valuing Homemaker Contributions (p. 338-343)
. Use of Fault in Dividing Property
. Dividing Debts
. Oregon Statutes, pg. 31
C. SPOUSAL SUPPORT (pp. 370-401)
1. Introduction
. Applying the Changing Views.
. Oregon Statute (spousal support)
D. DIVORCE AND NEW PROPERTY (goodwill, degrees, pensions, etc &endash; pp. 401-446)
1. Generally
Ways to establish value:
2. Pensions and other employment related benefits.
. QDRO - Qualified Domestic Relations Orders (see p. 411)
Social Security, Military and other federal pensions
4. Oregon Statutes
. Degrees, Licenses, Jobs and Earning Capacity
. Oregon Statutes
IV. PARENT-CHILD SUPPORT DUTIES (pp. 447-498). CHILD SUPPORT
1. Introduction
. Determining the Level of Support. (p. 451)
. Three "Income Sharing" Models Used to Determine Support Levels (p. 456).. Flat percentage guideline. Income Shares Model
There are three basic steps
c. Delaware Melson Formula. A fourth approach. Oregon's
. Constitutional challenges
. Medical expenses
. Oregon statutes
. OAR's Establishing Child Support Formula. (p. 100)
Child Support Guidelines (OAR's)
B. SUPPORT FOR OLDER CHILDREN. SUPPORT FOR PARENTS
1. Introduction
. Oregon Statutes
V. MODIFICATION, TERMINATION, ENFORCEMENT (pp. 499-586). MODIFICATION AND TERMINATION OF SUPPORT
1. General modification and termination
. FORESEEABLE changes in circumstances.
. Voluntary versus involuntary decreases in the payor's income
. New Families - Spousal Support, Remarriage and Cohabitation. pg. 508.
. Oregon Statutes
B. NEW FAMILIES - CHILD SUPPORT PG. 518.
1. Generally
. First family first approach and second family first approach (stepfamilies).
. A Comparison: Child Support Duties When a Child Receives Aid to Families with Dependent Children (AFDC). (p. 530)
. Oregon Statutes
C. ENFORCEMENT OF SUPPORT ORDERS (P. 545)
1. Introduction
. Private Enforcement Mechanisms - liens, trusts and insurance (p. 546)
. Judicial Enforcement (Jail, withholding wages, contempt) (see pp. 547-565). Generally. Specifics of enforcing orders (Ch. 25 of Oregon statutes):
. Defenses to nonpayment of support. Retroactive Modification. Ability to pay your debt of child support, (p. 556). Linking Visitation and Child Support. In-Kind Contributions (as an offset against child support)
. The State-Federal Child Support Enforcement Program pg. 560 -. Expedited Processes. Enforcement by Wage Withholding.. Other Enforcement Devices &endash;. Child Support Assurance (assuring child support)?
. Oregon StatutesGenerally-&endash;Enforcement.WithholdingObligor's PropertyOrdered SecurityInterceptAgency Reporting &endash;Enforcement ServicesOf Occupational Licensesdministrative Process For Determining And Enforcing Support.
VI. CHILD CUSTODY (pp. 587-689). SOLE CUSTODY
1. Introduction
. Standards for Custody Determinations (Best Interest Doctrine) (p. 589)\
. The maternal preference (p. 604)
What's objectionable w/maternal preference as a starting point?
4. The primary caretaker (p. 609).
. Domestic Violence as a factor in Custody Cases &endash;
. Oregon Statutes
B. RELIGION, SEXUAL BEHAVIOR, AND RACE
1. Religion
. Co-habitation and sexual orientation
. Race
C. JOINT CUSTODY (p. 643). VISITATION AND MODIFICATION
1. VISITATION AND ITS ENFORCEMENT
. VISITATION RIGHTS OF GRANDPARENTS AND OTHER INTERESTED ADULTS
. MODIFICATION OF CUSTODY AND VISITATION ORDERS
. Oregon Statutes
VII. CHILD CUSTODY JURISDICTION. INTRODUCTION. THE SCOPE OF APPLICATION OF THE UCCJA IN OREGON
1. The UCCJA applies to all proceedings in which custody is at issue, including juvenile court neglect and dependency proceedings.
. THE UCCJA -- Assertion of initial jurisdiction to decide custody.
. How to Interpret the Significant Connection Jurisdiction Test where another state is a child's home state.
. THE UCCJA -- Duty to enforce decrees from other states and jurisdiction to modify custody decrees from other states.. Step 1 -- Enforcement under ORS ¤ 109.830.. Step 2 -- Modification of a custody decree from another state.
. THE PKPA -- States' duties to give Full Faith and Credit to custody decrees from other states.
. A state asserts initial jurisdiction consistently with the PKPA if:
. Duty to enforce other states' custody orders under the PKPA:
. Authority to modify other states' custody orders under the PKPA:. Step 1 &endash;. Step 2 &endash;
C. PROCEDURAL MATTERS. FEDERAL ENFORCEMENT OF STATE CUSTODY ORDERS. DIVORCE, SUPPORT, AND PROPERTY DIVISION JURISDICTION AND FULL FAITH AND CREDIT. BASIC TERMS AND PRINCIPLES
1. Divisible Divorce:
. Full Faith and Credit Clause (Art. IV, ¤ 1 of Constitution):
B. DIVORCE DECREES--JURISDICTION AND INTERSTATE RECOGNITION
1. Divorce:
. Full Faith and Credit for Divorce Decrees.
. Due Process and Assertion of Jurisdiction:
. Jurisdiction to divorce in Oregon:
. Getting around the Williams rules:
. Recognition of divorce decrees from other countries:
. Estoppel
. Comments about Sherrer and related rules and about estoppel:
C. SUPPORT ORDERS--JURISDICTION AND INTERSTATE RECOGNITION
1. Personal jurisdiction to enter support orders--long arm statutes and constitutional limits:) Does the state's long-arm rule give the court jurisdiction?) If the long-arm rule gives the court jurisdiction, does its application violate the due process rights of the defendant?
. Full Faith and Credit for support orders from other states. UIFSA
. The theory of how UIFSA is supposed to work is pretty easy.
E. PROPERTY DIVISION JURISDICTION, FULL FAITH AND CREDIT & CHOICE OF LAW
1. Jurisdiction to divide property incident to divorce and interstate recognition of property division orders:
IX. FAMILY FORMATION. COMMON LAW MARRIAGE AND RIGHTS OF UNMARRIED COHABITANTS (p. 139)
1. Introduction (p. 139)
. Common Law Marriage, Presumptions of Marriage and Putative Spouses (p. 142). Common Law Marriage (p. 143). Presumptions of Marriage &Putative Spouses (p. 153)
. The Legal Position of Unmarried Cohabitants (p. 159). Rights and Duties Between the Parties (p. 159). Partners Rights and Duties in Relation to Third Parties (p. 171). Domestic Partner Ordinances (p. 181)
B. PARENT CHILD RELATIONSHIP (what constitutes a parent?) (P. 1061)
1. Establishing who is father and mother.
. Protection of Families (p. 1084-1088):
. Unwed Fathers (p. 1088-1136) &endash; look in book.
XI. REGULATION OF MARRIAGE &endash; (ANNULMENTS, WHO CAN GET MARRIED, ETC) SEE -HANDOUT ATTACHED
1. Monogamy (see handout enclosed)
. Relationship (see handout enclosed)
. Different Sexes (see handout enclosed)
. Age (see handout enclosed)

 
I. BEING A FAMILY

A. OWNERSHIP AND CONTROL OF PROPERTY DURING MARRIAGE

Family unit or family entity.
Descriptively, it identifies and summarizes the characteristics of the family as a sociolegal institution. Normatively, it provides a basis for saying how members of such an institution should conduct themselves and how society should deal with that institution.ancient roots of this term come from the Book of Genesis. (p. 3). Bracton wrote that the husband and wife "are quasi one person, for they are one flesh and one blood. Blackstone explained to some degree the significance of the marital unity doctrine in observing that "by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband." (p. 4).

The myth of marital unity has substantially influenced the development of specific doctrines:
Assigning control of marital propertyof domicile to the husband andagainst suits by one spouse against another.

The notion of the family unit, is however, broader than the myth of marital unity. It is often invoked by cases to explain doctrines once justified more simply by reference to the doctrine of spousal unity.
Family unity = family privacy and family autonomy.courts refuse to regulate certain aspects of family behavior - i.e. - the reluctance of courts to order the financial and personal arrangements of spouses where the marriage is "intact." see McGuire.of the notion of family autonomy as a matter of right rather than prudence is often found in discussions of the sphere of parental control over child-rearing. In both settings, the family seems often to be conceived as an entity having claims separate from those of both the state and its members individually.there are tensions between a traditional view of the family as a unit and a more recent tendency to view the family as an association of independent actors.

B. MARITAL PROPERTY (i.e., ownership while still married) (p. 8)

The marital property systems of western nations today are divided into two types
1) Those in which the husband and wife own all property separately except those times that they have expressly agreed to hold jointly and
) Those in which the husband and wife own a substantial portion or even all of their property jointly unless they have expressly agreed to hold it separately. The scheme of separate property ownership is the common law system and the joint property system is found in nine states (this is community property - list on (p. 8).
Two basic systems of marital property rights.
1. Common law
. Community property (mainly southern states)

Wisconsin: only state to convert from common law property to community property via Uniform Marital Property Act.

. Common law system
_ The system during the time of the marriage concentrated effective control of the wealth of married persons in one pair of hands.
_ When a woman was single, she controlled her property, but this changed upon marriage (or coverture) which is the condition or state of a married woman - used to describe the legal disability of marriage for a woman.
_ These restrictions where removed by state Married Woman's Property Acts.

a. Real property
Upon marriage, the husband was entitled to the use of his wife's land for the period of the marriage and, if a child were born, for the period of the husband's life.was not a mere right to enjoy the property, it was a legal right - he could sell the property if he wanted.regard to the rents that the land would generate, the husband had absolute discretion. pg. 9. This took place during the joint lives of the spouses.
The situation changed, however, when one of the spouses died.
A wife who survived her husband recaptured her rights with respect to the property she brought into the marriage.important, her husband could not, during his life, alienate (transfer title or convey) that property without her active participation. Doesn't this contradict the fact that the husband could sell the land? wife acquired through her marriage an inchoate life interest in some part of the land that the husband owned and possessed during the time of their marriage. This dower right came typically to mean one-third of Ralph's property if there were children and one-half if there were not. It was a life estate. Husband would need wife's consent to sell the land and it was only valid if given in judicial proceedings - to be sure it was voluntary.

b. Personal property &endash;
The husband had more rights here, except for a few personal items (clothing, jewelry) the husband owned and could do as he wished with the wife's personal wealth.marriage he also takes responsibility for her liabilities., he was responsible for all debts before or during the marriage.

c. Gifts - gifts to the spouse or marital estate.
Transfers from husband to wife, such as when the husband purchased property from wealth he controlled and placed title in the wife's name alone or in joint ownership, were generally presumed to be gifts to her or to the marital estate. See Maxwell (gift presumed although both parties treated property as husband's) Brown (titling property jointly is strong evidence of intent of donor to make gift to marital estate.)the wife transferred wealth to her husband, courts often treated the transfer as a loan or as a bailment for safekeeping and would impose a constructive trust for her benefit on that property.
Modern equal protection doctrine and equal rights amendments have cast doubt on inconsistent treatment of transfers by spouses.

d. Modifications in the common law scheme
equity system for preserving wife's property - it came to be held that, if a grantor of property clearly specified that the property transferred was for the exclusive use of the wife, the transferor's limitation would be given effect in equity. The legal device use for this purpose was a form of trust. Equitable estates. (p. 12).
e. Married women's property acts
- their general thrust, was to return women to their capacities as single persons in dealing with their property. It is important to recognize that these acts, which are still in effect generally, only address a married woman's separate property - that is property she acquired before marriage or by her efforts or gift during marriage. They did not create any interest in the wife in her husband's separate property.
f. The title system and the possibilities of equity
the woman's separate estate in equity ;and the MWPA generally had no effect on property titled in the husband but to which both spouses had in some way contributed. Wives sometimes sought relief through generally applicable equitable remedies.
Murdoch v. Murdoch - Facts - wife petitioned for an equal division of the marital estate despite the fact all of the couple's valuable assets are in her husband's name.
Issue - Is the wife entitled to an equitable distribution of the marital estate for her non-financial contributions to the estate?
Rule - at common law, the property of a married couple is viewed as two separate estates, with each party retaining the property that is in their name upon divorce.
Dissent - A court of equitable jurisdiction is on solid ground in translating into money's worth a contribution of labor by one spouse to the acquisition of property taken in the name of the other.
Equitable Trust:
1. Legal title holder &endash; trust
. Economic benefit granted to beneficiary
Equitable Trust granted via:
1. Constructive Trust &endash; to avoid unjust enrichment
. Resulting Trust: (labor doesn't count here only capital &endash; cash or cash equivalent &endash; no intent of gift).
: where the trust is expressly declared in the instrument by which the legal estate is transferred to the trustee or by a written declaration of trust by the trustee, the court must give effect to it. If it is not in writing it can only take effect as a resulting, implied or constructive trust - this is created whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself it by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land. Here this did not happen. Dissent says the basis of a constructive trust is unjust enrichment - the wife did work and may have contributed some of her earnings to the house. Trusts founded on such intention, whether express or implied in fact from the nature and character of their transactions, are often called "resulting trusts." (a common instance of the resulting trust is where the consideration for the conveyance is paid wholly or in part by a person other than the grantee.Murdoch - neither the majority or dissent treats the contribution of labor or services in connection with property as the equivalent of a contribution of capital. HERE IS WHERE SHE LOST &endash; B/C A TRUST REQUIRES AN IMPUT OF CAPITAL ($$). However the dissent allows a constructive trust - but makes a distinction between service on the ranch and mere housekeeping chores. This is b/c that may be required in a marriage.
2. Community property

Uniform Marriage and Divorce Act's - principle of equitable distribution of property at divorce, (without using title only or only whether someone earned a paycheck or brought something into the marriage) plainly draws on the theory of community property - and has achieved wide acceptance.
_ Generally recognized ownership by both spouses in wealth acquired by either of them during the marriage.
_ Premarital wealth is regarded as separate property, and its ownership is not affected by marriage.
_ Under community property a woman never lost her right to manage her real and personal property during marriage.
_ Apart from her dowry, a wife enjoyed the exclusive rights to control, manage, and dispose of her separate property and could, without her husband's consent, convey her separate property. However, while the wife held an ownership interest in that wealth that wives in common law states did not possess, her interest was passive as long as her husband was alive.
_ Laws treating husbands as head of the family did not survive attacks under the equal protection clause.
_ NOTE &endash; in community property states there is a fiduciary duty for both spouses to manage the property for the benefit of the other spouse.
1970's three different systems have been used to allocate management authority. (p. 26).management - requires spouses to make joint decisions regarding community wealth (usually for major assets). Either equal or sole management of property is reserved in most states for smaller items &endash; to cumbersome to manage "jointly."
Equal management - authorizes either spouse, acting alone, to manage the community property. Equal and sole management both permit one spouse to affect the property interest of the other without giving that spouse notice. No state has accepted one of these management systems for all transactions involving community property. Basically &endash; whomever exercises control/discretion first wins.
Sole system &endash; whoever acquires it controls it. (essentially title system in disguise &endash; I think).
Marital Property Act - this embraces community property principles. It was approved by the ABA in 1984 and adopted only by Wisconsin &endash; (p. 27). Willcox v. Penn Mutual Life - Penn Supreme Court held the statute unconstitutional insofar as it gave one spouse an interest in the income or profits derived from property owned by the other spouse prior to the statute.

. Oregon Statutes - ORS 108.010-108.100 on pages 56-57 of supplement.

.010. Removal of wife's civil disabilities; wife's civil rights same as husband's. Wife now has the right of action for loss of consortium of her husband.
108.015. Domicile of married person or minor child.
108.020. Non-liability for other spouse's obligations. Not liable for debts before marriage or during marriage except as provided in 108.040.
108.030. Liability of husband for civil injuries committed by wife. He is not responsible unless he would be jointly responsible with her if the marriage did not exist.
108.040. Liability for expenses of family or education of children; time for commencing action; liability after divorce or separation. Both are accountable for children's expenses. After separation the spouses are not responsible for debts of the other except in relation to the children. Factors to look for in finding separation are listed.
108.050. Non-liability of wife's property for husband's obligations.
108.060. Non-interest of one spouse in property of other.
108.070. Rights of abandoned wife; adjudication of abandonment. After one year, a wife can treat and deal with her property as if a sole female.
108.080. Civil remedies between spouse in respect of separate property.
108.090. Conveyances, transfers and liens between spouses; creation and dissolution of estates by entireties; validation of prior dissolution's.
108.100. Husband and wife as attorney in fact for each other.

. Daily Management of Property and Support Duties During Marriage.

McGuire v. McGuire (p. 34) -
Facts - P had been living with her husband for 33 years when she brought an action to recover suitable maintenance and support money. Throughout their years of marriage, D had given his wife very little clothing and provided her with a minimal budget with which to maintain their home. P attended to various household duties including the maintenance of their farm. D was very frugal and she knew that when she married him. - may a wife who remains married to, and remains in the home with, her husband, bring an action for her maintenance and support?
Rule - for a wife to maintain an action for support from her husband, the parties must be separated or living apart from each other. Basically &endash; they are required to work it out for themselves b/c the courts have no business setting the level of support required w/in a marriage. However, - see Buckstaff below.
Dissent - As a husband has the obligation to furnish his wife with the necessaries of life, a wife ought to be able to seek allowances for her maintenance and support even if she remains in the home with her husband. The majority said that public policy requires such a holding. (p. 38) The dissent also says you do not want a wife to be forced to divorce her husband just to receive maintenance.
Ann Glendon (p. 39)., Power and Authority in the Family: New Legal Patterns as Reflections of Changing Ideologies. - there is a traditional American reluctance to intervene in marital decision making. The Massachusetts Supreme Judicial Court, declined to recognize such a right in a husband to decide whether a woman could have an abortion. "Some things must be left to private agreement."
Teitelbaum (g. 40).. Family History and Family Law. We are moving from an hierarchically ordered household closely integrated with the community towards an egalitarian, compassionate family sharply separated from the public world. Privacy of household - free from government control. Generally, the notion of family privacy includes two situations: those in which courts decline to intervene to resolve intra-familial disputes for prudential reasons and those in which they say that law may not properly regulate certain aspects of family relationships. Law only ratifies the naturally existing or socially created inequalities which have led to the victory of one over the other.
Hafen (p. 42), The Family as an Entity. Emphasizing the family's internal institutional autonomy may leave some deserving individuals without legal recourse for unequal treatment or other wrongs (short of actual abuse) that they may suffer within the sphere of family privacy. But, when we increase state intervention in an ongoing family to protect the autonomy of some family members against others, we may be simply exchanging one threat to autonomy for another. Which threat is worse? Over the long run the government is.
Kenneth Galbraith (p. 43).. Economics and the Public Purpose. The household as an individual consumer. The common reality is that the modern household involves a simple but highly important division of labor. For example the administration of the consumption resides with the woman. But the man who makes the money is the head of the household. The "household," in the established economics, is a disguise for the exercise of male authority.
. Thomas Oldham (p. 45), Management of the Community Estate During an Intact Marriage. Factors other than legal rules have a significant effect upon how spouses manage their money - per two studies. But this does not render legal rules irrelevant (like under common law - who manages the money).

. Necessaries - enforcing duty of support (from husband normally).
There are at least four schemes of ordering the liability of spouses for "necessaries" purchased by one of them.
At common law, the husband was liable for both his own debts and those incurred by his wife.approach in Estate of Stromsted and Buckstaff is that the husband is primarily liable for necessaries and the wife is only secondarily responsible. Accordingly, a creditor must first seek satisfaction from the husband and can go against the wife only if the husband's assets are inadequate.joint and several liability, allowing the creditor to choose either or both spouses as the target for collection.that the creditor should seek to recover first against the spouse incurring the obligation, making the other secondarily liable.
NOTE on Necessaries Doctrine:
_ It was traditionally a defense to an action for necessaries that the wife had forfeited her right to support by adultery or abandonment of her husband.
_ The necessaries doctrine is a device for enforcing the husband's duty of support.
_ Elements in a "necessaries" suit includes: 1) must be necessary (food, shelter, clothing, furniture, and such provisions for protection w/in her society; 2) marriage must be proven; and 3) husband fails to provide (burden on husband to refute &endash; or show he did provide).
_ Necessary &endash; based on reasonable need, based on socio-economic status, and based on previous lifestyle.
_ McGuire and Buckstaff &endash; still good law.
Furniture, Inc. v. Buckstaff &endash; (p. 46).
Facts - Wife purchased a sofa from Sharpe and signed in her own name. Wife made no representation that the purchase was being made in her husband's name, in fact, Mr. Buckstaff advised the local credit bureau that he would not assume responsibility for credit extended to his wife. The couch was delivered to their home and no payment was ever made.
Issue - Under the common law doctrine of necessaries, is a husband liable for sums due as payment for necessary items purchased on credit by his wife?
Rule - in the absence of an express contract to the contrary, a husband incurs the primary obligation to assume liability for the necessaries that have been procured for the sustenance of his family.
_ The concurrence says that at some point the gender classification of this rule must change because in some cases the wife not the husband may have more money.
_ The doctrine of necessaries traditionally required the creditor to show that he supplied to the wife an item that was, in fact, a necessary and that the defendant had previously failed or refused to provide his wife with this item.
_ Policy &endash; you don't want courts defining the underlying nature of the relationship (see Hafen at p. 46). Also, see ORS 108.040 then Married Women's Property Act. ORS 108.070, & 110 &endash; on their face look like they will allow "necessity suits, but it really doesn't provide for it.
_ Although - ¤ 108.080 &endash; does allow for separate maintenance (alimony).

. Public benefits
: For poorer people based on need.
Medicare &endash; Medical expenses for people on social security &endash; not based on need. Doesn't pay for nursing homes. So, if receiving Medicare, & on Soc. Sec, if you want to go into nursing home, then you must go on Medicaid.
Q: in terms of Medicaid &endash; how do you determine need and figure in spouses property (marital property).
 &endash; (p. 52).
Facts - P, an elderly woman, brought an action seeking monthly support from her husband. Mr. Septuagenarian, who was ill and resided in a nursing home, received monthly pension payments in addition to his Social Security benefits. The Commissioner of Social Services claimed that virtually all the husband's income should be used to partially reimburse the state for its expenditures for his care, medical attention, housing and food and thus, that he was incapable of supporting his wife.
Issue - Under the Social Services law, are spousal support payments exempt from the requirement that all of a Medicaid recipient's income be applied to the cost of his care?
Rule - the Social Services law allows spousal support payments to be exempt from the requirement that all of a Medicaid recipient's income be applied to the cost of his care. This is an example of the necessaries doctrine arising in the case of new property. Note (p. 54) - were Social Security benefits public assistance, the petitioner would not be able to consider them as a potential source for her support.
Schweiker v. Gray Panthers (p. 54 &endash; US Sup. Ct. 1981) &endash; Reverse of Septuagenarian.
Facts - this case addressed whether it was unlawful for federal regulations that allowed states receiving federal funds from the Medicaid program to assume that a portion of the spouse's income is available to an applicant.
Issue - is it unlawful to allow states, in determining the eligibility of an applicant for federal medical benefits, to assume that a portion of a spouse's income is available to an applicant?
Rule - In light of the duty of spousal support, states may, in determining the eligibility of an applicant for Medicaid benefits, properly assume that a portion of a spouse's income is available to an applicant.
_ The rule in this case was that there were Medicaid regulations governing when the income of one spouse might be "deemed" (presumed) to be available to the other.
_ In one scheme, states calculate the amount considered necessary to cover the basic living expenses of the spouse and deem the remaining income available to the applicant, whatever their living arrangements may actually be.
_ As of 1992 the spouse of the institutionalized Medicaid recipient is entitled to retain from the couple's income a monthly allowance of 150 percent of the federal poverty level for a couple. Moreover, income owned by the non-institutionalized spouse will not be attributed to the institutionalized spouse.
_ Sup Ct. ruled that there is no need to have individualized hearings to determine the amounts set by the Soc. sec. Administration on behalf of amt. Contributed to Medicaid. There is Medicaid regulation which sets a baseline amount of one spouses income "deemed" to be available for the support of the other.
_ Currently &endash; spousal income to be kept from Medicaid was raised.

7. Oregon Statutes on pages 56-58.

ORS 108.040. Liability for expenses of family or education of children; time for commencing action; liability after divorce or separation. Parties when married are responsible for all expenses of the family.
ORS 108.110. Petition for support of spouse and children. An agency or a married person can petition for support from the other spouse.
ORS 108.120. Order on hearing petition; order as judgment; compelling attendance of witnesses; decree or order. This section allows a credit against child support arrearages for periods of time, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent.

C. MARRIAGE AND THE LAW OF GENDER-BASED DISCRIMINATION AND SPOUSAL CONTRACTS DURING MARRIAGE (p. 56).

1. Choosing Domicile
theory of marital unity has been said to account for the common law rule that the husband may choose the marital residence. A wife's refusal to follow the husband would in the old days be desertion. It followed that a wife who resided away from her husband without his consent or fault forfeited her right to support. If, however, the husband abandoned his wife, either actually or constructively, the wife could acquire a separate residence, at least for purposes of divorce. Nor did the wife's duty require her to follow her husband when the new residence would be manifestly unsuitable to her health, safety, or physical comfort. All this is in reference to a problem. pg. 58. note that if it appears that the wife's obligation to accept her husband's decision could be revived if the latter clearly has indicated his wish that she return to him.
2. Additional Materials Concerning Liability for Necessaries.
Clinic v. Discher - Stromsted held that wives share with their husbands the legal duty of support of the family - this overruled the old common law rule whereby the husband was solely responsible for his family's necessaries. This court feels that the Stromsted rule accurately reflects the position of married women in contemporary society. This is because women still lag far behind their husbands in earning power (shown by empirical data on p. 59).
3. US Supreme Court Decisions on Gender Classifications
The United States Supreme Court has not upheld classifications based on gender when the classifications command dissimilar treatment for men and women who are similarly situated.
But when the classification reflects a demonstrable fact that men and women are not similarly situated in a certain respect, then the classification has been upheld.

Equal protection:
1. Classification by the state or individual based on gender, race ethnicity, & religion.
. Classification determines level of scrutinyscrutiny &endash; highest level &endash; classification must be necessary to achieving compelling state interest&endash; substantially related to achieving an important state interest&endash; rationally related to achieving a permissible state interest.

Presumption: start with rational scrutiny then move upwards.
SO, court must:
1. First determine classification (race, gender, etc &endash; content neutral v. facially discriminatory)
. Then apply the analysis (rational, intermediate, strict).
Problem 96 &endash; Question of disparate impact &endash; need to show motive or intent was to discriminate, thus cannot be incidental discrimination. So, a statute may be gender neutral on its face and discriminatory but yet may or may not survive the test based on "motive or intent." (i.e., did statute intend to discriminate?)
Look at:
1. totality of circumstances
. whether old law was discriminatory on its face and new one is wolf in sheep's clothing.
. Procedural differences (for the members of each different class0
. No other way to explain the differences.
Bradwell v. Illinois (p. 60) US Sup. Ct &endash; (1873)
Facts - Myra Bradwell was denied admission to the bar of Illinois b/c she was a woman.
Rule - a state may exclude women from certain professions solely on the basis of gender. Man is protector of the woman and if a woman had her own career, this would be repugnant to the idea of family and harmony in the family.
Goesart v. Cleary (p. 60) US Sup. Ct (1948) Michigan law provided that no woman could obtain a bartender's license unless she was the wife or daughter of the male owner of a licensed liquor establishment. This was held to be constitutional. Court gave deference to the legislature - the law was to protect women. Now from my own experience &endash; I know this is no longer true.

Craig v. Boren - (p. 61) US Sup. Ct (1976) - Oklahoma law prohibited the sale of 3.2 percent beer to males under the age of 21 and to females under the age of 18. Classifications of gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Administrative convenience is not enough. Reed. The generalizations cannot be archaic and overbroad. The law is unconstitutional. The means is not related to the goal of reducing traffic accidents and the statistics create an unduly tenuous fit.
Califano v. Goldfarb &endash; (p. 63) US Sup. Ct &endash; (1977)
Facts - Under the Federal Old-Age, Survivors, and Disability Insurance Benefits program, a widow (female) could receive survivors' benefits based on the earnings of a deceased husband covered by the Act. A widower (male) could only receive such benefits if he was receiving at least one-half his support from his deceased wife. Issue - Does a statutory benefit scheme automatically extending benefits to widows but requiring widowers to prove dependency on their wives' income violate the equal protection clause?
Rule - a gender based distinction in a statutory scheme designed to provide benefits to a surviving spouse enacted upon the notion that men are more likely than women to be the primary supporters of their spouses is unconstitutional. (this is based on over-broad generalizations and archaic ones).
Dissent - the statute accords differing treatment to men and women based upon some ground of difference (the relative economic well-being of men and women) having a fair and substantial relation to the object of the legislation and thus should be upheld.
Note that this law deprives women of protection for their families which men receive as a result of their employment.
Califano v. Webster &endash; (US. Sup. Ct.) (1977)
Facts - under the social security act, old-age benefits were computed on the basis of the average monthly wage earned during one's "elapsed years." The statute provided that the number of elapsed years for a male wage earner is three higher than for a similarly situated female wage-earner, allowing a retired female wage earner to collect higher old-age benefits.
Issue - Does a statutory program extending female wage earners higher old-age benefits than similarly situated males violate equal protection guarantees?
Rule - To withstand scrutiny under equal protection, a classification based on gender must serve important governmental objectives and must be substantially related to the achievement of those objectives. Remedying past economic discrimination against women is an important governmental objective served by the disparate treatment of men and women under the Social Security Act. Concurrence - certainty in the law may be impaired by attempting to distinguish the social security provision upheld in this case from that struck down in the case of Califano v. Goldfarb.

Orr v. Orr &endash; US Sup. Ct. (1979)
Facts - P challenged the constitutionality of a state alimony statute that provided that husbands, but not wives, may be required to pay alimony upon divorce.
Issue - May a state enforce a statutory scheme that imposes alimony obligations on husbands but not wives?
Rule - A state may not be permitted to classify on the basis of sex where the state's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender-classifies (a hearing process is what they are referring to).
Kirchberg v. Feenstra &endash; (p. 21) US Sup. Ct. (1981). &endash; - Mr. Feenstra signed a promissory note in prepayment for legal services to be performed by Kirchberg. As security on this note, Mr. Feenstra executed a mortgage on the home he owned jointly with his wife, but did not obtain his wife's consent since state law did not so require.
Rule - Ct. held unconstitutional a law which designated the husband as "head and master" by giving him power to manage community property while wife was permitted to counter this only be executing a public document ('declaration of authentic act') prohibiting him from executing a mtg. without her consent.
Basically - Absent an important governmental interest, a statute that expressly discriminates on the basis of sex is unconstitutional; therefore, as no such important governmental interest is advanced by allowing the husband to act as the "head and master" of property jointly owned with his wife, such a statute is unconstitutional.
Michael M. v. Superior Court of Sonoma County &endash; (P. 67) US Sup. Ct. (1981)
Facts - D claimed that California's statutory rape law violated the equal protection clause of the fourteenth amendment since the statute makes men alone criminally liable for the act of sexual intercourse. 
Rule - A statutory rape law that prohibits a male from having sexual intercourse with a minor female is sufficiently related to a state's interests in preventing teenage pregnancies and thus is constitutional. Pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on makes thus serves to roughly equalize the deterrents on the sexes.
Rotsker v. Goldberg &endash; (p. 69). US Sup. Ct (1981) &endash; Congressional legislation requiring men, but not women to register for the draft. Supreme court found this constitutional. Congress determined that the draft itself would result from a need for combat troops and women are simply not similarly situation for purposes of a draft or registration for a draft. The constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.
J.E.B.. v. Alabama Ex Rel. T.B. &endash; (p. 69) (1994) - a state used nine of its ten peremptory challenges to remove male jurors thereby empanelling an all-female jury. Court found this unconstitutional stating that gender-based scrutiny could not survive the heightened equal protection scrutiny used for distinctions based on gender. The State's argument that women and men may differ in receptivity to arguments of the children's mother is based on the very stereotypes the law condemns.
United States v. Virginia Military Institute (VMI) &endash; (Supp. pg. 1) (1994) VMI's exclusively male admission policy violated the EPC. O'Connor and the court held that any gender-based government action must rest on an "exceedingly persuasive justification." Important governmental objectives that are substantially related. It can not be pretextual or perpetuate the legal, social and economic inferiority of women. The VMI did not pass this test and therefore violated the EPC.

4. Spousal Contracts (prenuptial, antenuptials, etc. &endash; pp. 69-81)

Borelli v. Brusseau &endash; (p. 70)
_ FACTS: Spouses entered into an antenuptial agreement. Husband became sick and told wife that he would leave a bunch of property to her. Later the D and P entered into an oral agreement whereby the decedent promised to leave to appellant certain property in exchange for her caring for him at his home for the duration of his illness. Appellant performed her promise, but the decedent did not perform his. Note - It is fundamental that the marriage contract differs from other contractual relations in that there exists a definite and vital public interest in reference to the marriage relations.
_ With marriage you are not supposed to contract, you have a moral and legal obligation to one another. When necessary spouses must provide uncompensated protective supervision services for each other. Preexisting duty.
_ HELD: spouse is not entitled to compensation for support, apart from rights to community property and the like that arise from the marital relation itself. Thus, even if few things are left that cannot command a price, marital support remains one of them.
Questions of:
DuressK &endash; prohibition against testimony by person who is producing uncontroverted testimony &endash; (i.e., dead men can't testify).of Frauds: doesn't apply to oral K's between husband and wife., as in McGuire, the ct. doesn't want to get into regulating these areas.: if not in business context, K's in marriage prob. Not going to be enforced.
Dissent - he says this smacks of the common law doctrine of coverture, which treated a wife as scarcely more than an appendage to her husband. He says times have changed and wives' roles have changed. To contend in 1993 that such a contract is without consideration means that if Mrs. Clinton becomes ill, President Clinton must drop everything and personally care for her. There is no sound reason why their contract which clearly facilitated continuation of their marriage should be any less valid.
Contracts by married women were generally unenforceable at common law. There are four reasons:
Since a wife had no separate existence from her husband, a husband who contracted with a woman would be contracting with himself.is under the power of the husband and he cannot be deprived of her household services - should she be arrested for contracting.agreement a woman made could be enforced against her b/c she owned nothing the court could seize to meet a judgment - the husband owned everything.more modern rationale is found in Balfour - there was a contract between wife and husband for an allowance for the wife. The wife was unable to return to Ceylon with her husband because of medical reasons and so he agreed to send her money until she returned. The Court held that there are agreements between parties which do not result in contracts within the meaning of the term in our law. although the court refused to enforce the promise involved in Borelli, some agreements by persons entering marriage will be enforced - like prenups for property as long as certain requirements of disclosure and fairness are satisfied.
Temple, (p. 78) - Freedom to Contract - if marriage has truly become a personal rather than a social institution, we should defer to personal, private ordering of the relationship.. 79 - psychologic man - where personal and family relationships, become arrangements of convenience designed to advance the personal satisfaction and self-fulfillment of their members.
Carl Schneider. (p. 7?) It has long been established that premarital agreements may deal with property rights of the spouses when the marriage terminates by death. However, according to traditional principles, terms that contemplated divorce were ordinarily viewed as contrary to public policy and thus unenforceable.
Posner v. Posner (p. 699) - held that contracts concerning property division and spousal support at divorce are not inherently contrary to public policy. Most courts now when faced with the issue have reached the some conclusion by reasoning that in the era of no-fault divorce, public policy favors settling disputes amicably.
v. McAlpine (p. 699) parties may not waive permanent spousal support by premarital agreement.
 - and many other cases require either that a premarital agreement make full and adequate provision for the spouses or that the spouses make full disclosure to each other.
Simeone v. Simeone &endash; (p. 699) Issue &endash; when will prenuptial agreement be held void
Facts - the Simeones entered into a prenup. agreement, which the wife signed without an attorney to advise her of the legal rights she would be surrendering. After their separation, and the agreement was fulfilled, the wife attempted to revoke it.
Issue - Under what circumstances will a prenuptial agreement be declared void?
Rule - Prenuptial agreements are contracts, and as such, spouses are bound to their terms as they would be bound to any other contracts, except where fraud, misrepresentation or duress are present. Thus, the agreements must include a full and fair disclosure of the financial resources of the parties. Here the court found the agreement valid and enforceable.
NOTE: In PA at the time spousal support not required, thus any support beyond the marriage is good.
Dissent - He thinks that not only should you decide if the party was aware of what they are signing, but it is also important to analyze whether the agreement is fair and equitable. Passage of time may render the terms of the agreement unfair. One spouse should not be made to suffer for failing to foresee all of the surrounding circumstances which may attend the dissolution of the marriage.
NOTE: Studies show that premarital agreements may operate more frequently to the economic disadvantage of women than of men. The reasons for the apparent disadvantage to women, the author suggest, include the facts that premarital agreements are most common in second marriages - which involve wealthier men.
Re Marriage of Foran - the court refused to enforce a premarital agreement, prepared by the husband's lawyer, that in effect allowed the husband to increase his already substantial wealth at the expense of the marital community.
Gail Brod (p. 708) -, Premarital Agreements and Gender Justice. Until there is true economic and social parity between men and women, lawmakers must temper the relentless freedom of contract approach by considering countervailing policies and concerns (the attainment of economic justice for the economically vulnerable spouse) Economic justice is attained if at the end of marriage a spouse's economic position is not significantly worse than it was before the marriage. But, an economically unjust agreement should be enforceable, if the law guarantees that the agreement was fairly procured.
The Uniform Premarital Agreement Act (p. 710) Adopted in 19 states. It is enforceable without consideration. The right of a child to support may not be adversely affected by a premarital agreement. Also a section regarding what happens if the contract leaves out spousal support and then the ex is put on public assistance? Court can force a support order.
HARRIS &endash; cts, often uphold premarital agreements that stipulate what happens during divorce as long as there's no incentive to get divorced. Remember the couple that had a prenup that laid out when they will have sex, when to turn of the lights, etc. (on TV the other night).
Common Law: if terms were fair and adequate then OK. If not, then presumption the K was overreaching. Presumption could only be overcome by showing:
. Full and fair disclosure.
2. Proof adverse party had independent counsel.
Note: unconscionable &endash; may be reason to void a marital K. So unreasonably detrimental to the interest of a contracting party as to render the K unenforceable.
Definition on unconscionability (p. 712):
Procedural unconscionability is fault or unfairness in the bargaining process and
Substantive unconscionability as fault or unfairness in the bargaining outcome - that is, unfairness of terms.

NOTE: if Uniform Marital Agreements Act is use &endash; unconscionability is based on time of K.

. Oregon Statutes pg. 58-59108.700. definition of premarital agreement and property.
ORS 108.705. Agreement to be in writing; consideration not required.
ORS 108.710. Subjects of agreement; child support not to be adversely affected.
ORS 108.715. Agreement effective upon marriage.
ORS 108.720. Modification of agreement; consideration not required.
ORS 108.725. Party may prove agreement unenforceable; when court may require support; determination of unconscionability.
D. DOMESTIC VIOLENCE (p. 88-111)

1. Violence Between Spouses

_ Law only recognizes physical abuse, not emotional but - 95% of all victims are women.
_ Domestic violence is about power, control, not about anger. Use intimidation, threats, or force.
_ Usually one person controlling all the funds.
_ Cycle of violence: 1. Tension Building; 2). Crime (violent act); and 3) rest period (usually punctuated by "I'll never do it again."
_ Official notice depends even more heavily on whether the victims so identify themselves, how seriously they regard the conduct they encounter, and whether they wish to become involved in the formal processing of a complaint. Thus, the definition of domestic deviance is largely in the control of wives and husbands.
_ Why stay?of $ (other party controlsguilty about taking kids away from other spouse.911 &endash; police come but no interventionassault &endash; they often go after the other person.
_ Violence Against Women's Act (Federal) (supp. pg. 2). Based power of commerce clause. Federal level of protection for crimes motivated by gender. Interstate enforcement of restraining order. Made if a federal felony to cross state borders to violate a restraining order. When you have been convicted of domestic violence then you are required to turn in your guns.

Thus: we have in Oregon
1. Restraining Orders (protection from abuse order) It is a pro-se (self-help) action.
Oregon: there won't be a 2nd hearing unless other party requests one b/c 1st is ex-parte hearing.in Oregon &endash; attempted physical injury or sexual relations that occur by force or by threat of force.&endash; requires the perpetrator to move out of the home w/no contact w/victim or children (cannot be via mail, phone, person, or through 3d parties.order temporary custody. can order perp. To relinquish all weapons.. Can be ordered to pay for any damages caused.last up to 1 year (poss 6 months) and can be reversed.of the order is a misdemeanor, even if victim invites the offender over (b/c it is contempt of ct. order).
2. Stalking Order &endash;
Never expire.much more strict (continued threats of physical harm, following, etc.is "repeated unwanted contact that causes the victim reasonable apprehension or fear of harm."

People v. Liberta - Facts - D, while living apart from his wife, forcibly raped and sodomized her.
Issue - Is a rape statute that distinguishes between marital and non-marital rape constitutional?
Rule - as there is no rational basis for a rape statute that classifies on the basis of marital status, then marital exemption for rape is unconstitutional.
in defense of the marital exemption given by the state
protects against governmental intrusionthe exemption would disrupt marriages because it would discourage reconciliationrape is a difficult crime to prove andrape is not as serious an offense as other rape. Court is for the wife in this case.number of legislatures and courts have abandoned the traditional view that a wife cannot be raped by her husband.Model Penal Code however retained the spousal exemption and including persons living together under the exemption. pg. 95.

2. Constitutional Decisions (MORE Equal Protection Classifications).

Washington v. Davis (p. 97) - unsuccessful black applicants for positions on the DC police force, claimed that the test measuring verbal ability, etc. resulted in a higher percentage of blacks failing the test and therefore discriminated against them. There was no claim that use of the test was an intentional or purposeful act of discrimination. Court has not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the EPC simply because it may affect a greater proportion of one race than of another. The constitution does not prevent the Government from seeking modestly to upgrade the communicative abilities of its employees.
Village of Arlington Heights v. Metropolitan Housing Development Corp (p. 98) - respondents sought rezoning of a parcel in Arlington Heights in order to build low- and moderate-income housing. Denial of the request was challenged as racially discriminatory. Impact alone cannot be determinative. Failed to prove that discriminatory or invidious purpose was a motivating factor in the Village's decision.
Personnel Administrator v. Feeney (p. 99)- challenge to the constitutionality of the Massachusetts veterans' preference statute on the ground that it discriminates against women in violation of the EPC. Under the statute, all veterans who qualify for state civil service positions must be considered for appointment ahead of any qualifying non-veterans. The appellee's ultimate argument rests upon the presumption common to the criminal and civil law, that a person intends the natural and foreseeable consequences of his voluntary actions. The appellee, failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex.
3. Historical and Social Background

Elizabeth Pleck (p. 100) - Domestic Tyranny: the making of social policy against family violence from colonial times to the present. The single most consistent barrier to reform against domestic violence has been the Family Ideal. This includes 1) belief in domestic privacy 2) belief in conjugal and parental rights 3) belief in the preservation of the family.
Joseph Weis. (p. 102) - Substantial discrepancies among estimates of prevalence, incidence and correlates of family violence compromise the usefulness of research results.
Richard Gelles (p. 102) - research results. Talks about the cycle of violence. The first stage is the tension building stage (verbal threats, and minor battering at this stage). Women attempt to calm the batterer during this stage. The second stage is the acute battering incident. This stage is characterized by uncontrollable discharge of tension. This stage is usually brief and is followed by the third stage of kindness and contrite loving behavior. and then the cycle begins again. It is the full cycle of violence and not just the battering incidents that inflict the psychic and physical damage on battered wives.
NOTE: Chart on p. 102 &endash; lays out Husband-to-Wife Violence in 1985. &endash; my favorite.

Legal Responses to Domestic Violence (p. 105)-.In 1984 when this recommendation was mad, policy in most states could not legally make a warrantless arrest for a misdemeanor unless it occurred in the officer's presence). The recommendations were:plus a night in jailandthe batterer to leave the house for at least 8 hours.arrest option is the most effective in deterring.made an exception so that the police did not actually need to see the event to make the arrest.there are mandatory arrest schemes to reduce police discretion.mandatory arrests could backfire and lead to less women calling in.

NOTE: there is also section on spousal tort liability.

. Oregon Statutes pages 49 to 53107.700. Family Abuse Prevention Act
ORS 107.705 Definitions
ORS 107.710. Petition to circuit court for relief. You can file a petition as long as abuse has occurred not more than 180 days before. You can also petition for child custody.
ORS 107.716. Hearing; additional relief; effect on title to real property; no under taking required. Hearing must be within 21 days after request. The court will accept a consent agreement, but it cannot affect title to any real property.
ORS 107.718. Petition for relief when petitioner in danger of abuse. Provisions of the safety of child and the petitioner. The Respondent will not have overnight parenting time.
ORS 107.719. Removal of personal effects; party accompanied by peace officer. Can remain up to 20 minutes.
ORS 107.720. Enforcement of restraining orders; sheriff's proceedings; contempt hearings; security.
ORS 107.722. Effect of dissolution, separation or annulment decree on abuse prevention order.
ORS 107.725. Renewal of order entered under ORS 107.716 or 107.718. for good cause regardless if there has been further abuse.
ORS 107.726. Standing to petition for relief of person under 18 years of age.
ORS 107.730. Modification of custody and visitation provisions of order entered under ORS 107.700 to 107.732.
ORS 107.732. Recovering custody of child. Police officer can assist in recovery.
ORS 163.730 pages 90 - 94. Definitions for stalking.
ORS 163.732. Stalking.
ORS 163.735. Citation; form. Police officer issues a citation ordering the accused to appear.
ORS 163.738. Effect of citation; contents; hearing; court's stalking protective order. Can have a mental health evaluation.
ORS 163.741. Service of order; entry of order into Law Enforcement Data System. If an order entered by the court recites that the respondent appeared in person before the court, the necessity for further service of the order is waived and accompanying proof of service is not necessary.
ORS 163.744. Initiation of action to obtain a citation; complaint form. A parent may present a complaint to protect a minor child. A guardian may present a complaint to protect a dependent person.
ORS 163.750. Violating court's stalking protective order.
ORS 163.753. Immunity of officer acting in good faith.
ORS 163.755. Conduct protected by labor laws.

. DIVORCE (pp. 265-587)

Goals in the class:
1. Understand Oregon's no-fault divorce law (read the statutes)
. Know other ways &endash; separation, irreconcilable differences.
. Covenant marriage.

A. GROUNDS

ORS ¤ 107.025 &endash; divorce grounds = irreconcilable differences.
ORS ¤ 107.205 &endash; grounds for separation &endash; same grounds as divorce &endash;differences.
ORS ¤ 108.070, and 108.110 &endash; separate maintenance statutes.

Separation	Divorce	
Right to inheritance, can't remarry, support duties (like necessities doctrine) still exist, still legally married, can reconcile, continued insurance.	No right of inheritance, can remarry, support duties if ordered by court.	

If &endash; you decide, after ct. ordered separation, to reconcile, then you need to move to set aside the ct. order, otherwise ??? (contempt?)
ORS ¤ 107.095 &endash; After filing suit for divorce, separation, you can get a temporary order for support, separation of property, and custody off children.
Temporary Restraining Order &endash; ORS ¤ 107.097 (Ex parte temporary custody or visitation orders prohibited) and 107.722 (effect of divorce, separation, annulment on protective orders) &endash; can get it only if you consolidate the issues.
Andrew Cherlin, (pg. 265) - trends in marriage, divorce and remarriage. Divorce has increased - he has charts.
Paula Mergenhagen DeWitt (p. 268) - breaking up is hard to do. Domestic relations cases accounted for one-third of all civil cases file in general jurisdiction courts in 1990. Divorce happens a lot in the first four years of marriage. Women are more likely to file for divorce b/c of their new position in the working world. Women w/ jobs and resources of their own are less likely to stay in an unhappy marriage.
Gary Becker, (p. 269). Marriages fail early primarily because of imperfect information in marriage markets and the accumulation of better information during marriage. Divorce is much less likely when there are children.
Carol Weisbrod, (p. 270) on the expressive functions of family law. Family law contains messages.
B. The Traditional Divorce System. pg. 272.
Law of marriage tolerated free divorce in theory and in practice.
The Anglo-American tradition formally derives from the Christian tradition of indissolubility. There was separation, annulment and divorce.
Annulment - defect existing at the time of the original contract (fraud, etc.)
Separation - divorce from bed and board (or &endash; a "mensa et thoro"). It freed one party of the obligation to cohabitate. However spouses were not free to remarry.
Divorce is new - annulment and separation were available earlier.

1. Fault Divorce.

_ Basically &endash; reflects a disfavoring of divorce except in extreme situations (p. 275).
_ As of 1994, 30 states retained traditional fault grounds for divorce.
_ The "bad" party usually got screwed by losing lots of $$ and/or custody of children.

Kucera v. Kucera - P brought action for divorce alleging mental cruelty. D counterclaims on grounds of adultery and extreme cruelty. Wife had a child wife another man and resumed relations with him. Direct evidence is not required to prove adultery. The court found that D had grounds for charging extreme cruelty against P (mental cruelty). D could also claim desertion. Both parties have established a cause of action for divorce and therefore the divorce is denied due to recrimination.
Adultery here &endash; based on no sex for 1 year and other guy was always there.
Recrimination: both parties at fault (is a showing by the defendant of any cause of divorce against the P in bar of the P's cause of divorce). In South Dak. &endash; recrimination is grounds for denying a divorce (thus both parties at fault and both still married &endash; stupid rule &endash; keeps warring parties together?)
Simpson v. Simpson: (p. 279). Guy threatens wife with physical harm, called her names, etc He called her names, threatened to kill her family members, etc. Husband claimed he was schizophrenic and that his disease should prevent the divorce.
The court said that in pleading insanity one must show that "as a result of mental disease or defect, he or she lacked sufficient capacity either to appreciate the wrongfulness of his or her conduct or the volition to control his or her acts. Equivalent standard as proving insanity in Civil case.
2. GROUNDS FOR DIVORCE (see pp. 283-285 &endash; see also pp. 274-275 NH statute)
Adultery (p. 283) this can include homosexuals. Can be proved by circumstantial evidence showing inclination and opportunity.
Cruelty. Threats to mental and physical well-being. Some courts require more than mere incompatibility. Most common form of cruelty &endash; marital unkindness. See Simpson v. Simpson above.
Desertion or abandonment - departure from the home without the consent of the other and without justification. Failures to object and offers to reconcile may constitute evidence of consent (waiver). There can be constructive abandonment like in Kucera. ("leaving" marriage by refusal to have perform marital duties like sex.).
Impotence. Some states do not include preexisting conditions as a basis for divorce.

. DEFENSES TO DIVORCE (see pp. 285-288).

Affirmative defenses.
Insanity. - When conduct was agreed to by the person filing for divorce. Or the spouse does not care whether adultery occurs.
Condonation (waiver). If you have grounds and then waive them, then you don't have grounds anymore. This occurs when the injured spouse, knowing of a marital wrong, continues or resumes marital cohabitation.(this is harder with mental cruelty). Condonation is conditional, forgiveness is conditioned on the absence of future wrongdoing. An offense, once condoned, may be revived if the offending spouse does not treat the condoning spouse properly.
Recrimination. Some courts don't like this and try to find what party is less at fault. Some states don't recognize recrimination but use instead "Comparative Rectitude" which is where both spouses have committed marital fault the court grants a divorce to the part less at fault.
The bar of collusion. Sometimes this is listed as a defense to divorce. This does not need to be pleaded or proved and is raised by the court. The bar arises from an agreement between the parties to frustrate the divorce procedure in some way. Collusion may also arise or be inferred from agreements not to defend a case. Of course, collusion is difficult to identify, since neither party has any interest in its detection. With collusion - no marital wrong has occurred. The assumption is that the state is the third party in the contract of marriage.
Provocation &endash; I was bad b/c the other party made me do it.

C. DIVORCE PROCEDURE UNDER THE FAULT SYSTEM (pp. 289-292).
the most striking aspect of divorce procedure is the unwillingness of courts to follow the generally applicable principle that the parties themselves decide whether and how they will conduct a legal dispute.the husband and wife are formal parties in a divorce - no third parties (like children allowed). Various rules expressed the state's reluctance to end a marriage and suspicion of suits to do so.
Collusion &endash; open trials required in some cases to forestall collusion between the parties, thus no stipulations or defaults &endash; got to hash it out in court (HOW DUMB!).
Note: no-fault divorce proceedings are generally more adversarial than other types of litigation.
3. Also there were various strategies to delay proceedings in the hope of reconciliation - for example:
interlocutory order - this decree was not final and the parties remained married to each other and did not have to live apart like with a judicial separation. See p. 292 &endash; Colorado's "Interlocutory cooling off" period.states had a "cooling off" period prior to trial, usually reflected in a period of delay between the time of filing and hearing.
Mandatory conciliation which was tried in the U.S. was regarded as a failure.
D. THE ADOPTION OF NO-FAULT DIVORCE.

Lawrence Friedman (p. 293) - Rights of Passage: Divorce Law in Historical Perspective. Divorce is equated to prostitution, at one point it was illegal, but people got around it therefore we have changed to no-fault.
1. Uniform Marriage and Divorce Act (p. 295).

¤ 302 - Dissolution of Marriage or legal separation can occur: if the court finds that the marriage is "irretrievably broken." A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.
2. Cases Defining Irreconcilable differences:
v. Desrochers (p. 297)\
Facts - Mrs. Desrocher sued for divorce on the ground of irreconcilable differences, but Mr. Desrochers claimed not to desire the divorce.
Rule - irreconcilable differences are determined by a reference to the subjective state of mind of the parties. While the desire of one spouse to continue the marriage is evidence of a reasonable possibility of reconciliation, it is not a bar to divorce. If one spouse resolutely refuses to continue and it is clear from the passage of time or other circumstances that there is no reasonable possibility of a change of hear, there is an irremediable breakdown of the marriage. The separation of the parties here for two and one half years and Mrs. Desrochers' persistence in seeking a divorce during that period is evidence from which the trial court could find that this marriage has irremediably broken down.
_ Missouri &endash; a marriage is irretrievably broken ONLY when both parties agree (see p. 299).
_ It is argued that the right to divorce should be limited where there are children, (p. 300)

Hagerty v. Hagerty &endash;
Facts - Mrs. Hagerty claimed her husband's alcoholism cause discord in the marriage and that it had irretrievably broken down.
Rule - A spouse's untreated alcoholism neither can nor should defeat findings that there is discord in a marriage and that it has irretrievably broken down, which make dissolution possible. The underlying concern of the dissolution statute is whether a meaningful marriage exists or can be rehabilitated.
The test is the subjective state of mind, (p. 302). The husband (alcoholic who didn't want a divorce) had public policy arguments for requiring treatment before an alcoholic can obtain a marriage dissolution. The court says that this is for the legislature to decide, not the courts.
Jan Gorecki - Moral Premises of Contemporary Divorce Laws. The principle of recrimination provides the harmed spouse with an opportunity to receive compensation by use of the threat of vetoing divorce.marriage. (Supp. pg. 3). Louisiana this requires premarital counseling and allows divorce only for limited fault grounds. The legislation allows parties to choose between covenant marriage and "regular" marriage which does not require counseling and allows no-fault divorce if the parties have lived separate and apart for at least 180 days.
3. Backlash against no-fault divorce (pp. 315-329)

Moral &endash; marriage is sacrosanct (religious basis of the backlash). Thus we should make divorce harder.
Concern over impoverishment of single women w/children (Harris' biggie). Easy divorce = single parent families where women are primarily the head of the family (tend to have low paying jobs).
Covenant marriage &endash; statement of intent to be married &endash; agree to mediation, cooling off period, and to make reasonable efforts to work it out.

Problem: there's going to be a demand for divorce &endash; so how do you satisfy the demand?
Covenant marriagefaultbased system

4. Oregon Statutes
ORS 107.025. pg. 25. Irreconcilable differences as grounds for dissolution or separation.
ORS 107.036. Doctrines of fault and in pari delicto abolished; evidence admissible not to include fault; decree. Evidence of fault only allowed where child custody is an issue. Fault cannot be considered in dividing property.
ORS 107.046. Appearance by public officials
ORS 107.055. Appearance by respondent; affirmative defenses abolished.
ORS 107.065. Waiting period in dissolution suit; waiver.
ORS 107.085. Petition; title; content; other required information.
ORS 107.087. When petition to be served on Support Enforcement Division (re: public assistance).
ORS 107.095. (p. 28) Provisions court may make by order after commencement of suit and before decree.
ORS 107.097. (TRO's) - Ex Parte (with only one party and no notice to the other party.) temporary custody or visitation orders prohibited; temporary protective order of restraint allowed; hearing; form.
ORS 107.115. Effect of decree; effective date; appeal. 30 days after the date of the decree the marital status of the spouses will be affected. If either party dies before the 30 days, the marriage will be terminated.
ORS 107.455. (p. 47). Effect of separation statutes or decrees on subsequent dissolution proceedings.
ORS 107.465. Authority of court to allow proceedings for dissolution; effect of proceedings.
ORS 107.475. Court to determine duration of separation; modification or vacation of decree.
ORS 107.485. (p. 47) Conditions for summary dissolution procedure. If proper jurisdiction, no pregnancy, no debts over $15K, married less than 10 years, no minor children, etc.
ORS 107.490. Commencement of Proceeding; petition content; court authority. for a summary proceeding.
ORS 107.755. Mediation Procedures. for child custody and visitation. this includes mediation of financial issues.
ORS 107.765. (p. 53). When referral to mediation required; scope of mediation; effect of agreement. For child custody and visitation. Can relate to custody or visitation, nor does it restrict property issues from being considered in the mediation sessions.
ORS 107.775. Methods of providing mediation services; qualifications; costs. The court provides mediation, but parties can use other mediators subject to their own expense.
ORS 107.785. Mediation proceedings closed; information confidential; records closed; exceptions. Nothing said in mediation can be used in criminal or civil cases.
ORS 107.795. Availability of other remedies.
ORS 108.070. Rights of abandoned wife; adjudication of abandonment. pg. 57. Period of one year calls for abandonment. question on this????
ORS 108.110. Petition for support of spouse and children. A spouse or state agency can petition the court.
ORS 108.120. Order on hearing petition; order as judgment; compelling attendance of witnesses; decree or order. for more info see under Being a Family, Daily management of property and support duties during marriage.
 
III. THE ECONOMICS OF DIVORCE (pp. 315-446)

A. INTRODUCTION

There are 3 main types of orders in family law:
Property DivisionSupportSupport

Two Major issues in divorce to consider:
All divorcee's should be encouraged to get on with their lives. Issues that last after marriage &endash; how to deal with them.impoverishment of single women & children. Note: we will deal w/support for children who are born outside of marriage /divorce context.

Other issues to consider:
Property division orders are not modifiable, have no tax consequences, and are dischargeable in bankruptcy.and child support orders are modifiable and terminable and are not dischargeable in bankruptcy.support payments have no tax consequences, but spousal support is deductible to the payor and income to the payee under the Internal Revenue Code.parent was formally found at fault for divorce has often been a consideration but not a determinative factor of who got custody of the children. For example the fault based system often affected division of property, custody, and thus child support b/c it determined the "bad" party and "penalized" them.there was a distinction between property and alimony.Orders in the No-Fault Era.decrees should end as far as possible, all personal and economic ties between the spouses.abandonment of fault grounds, coupled with the emerging emphasis on gender equality, implied that both spouses should become equal and independent social and economic actors after divorce and that neither spouse should be especially burdened by the divorce decree.

2. Criticism of No-Fault Economics (single mother issue).

_ Critics thought no-fault divorce created an unprecedented economic disaster for the women and children of divorce.

Weitzman, (p. 319) - women are no longer able to bargain. She argues that 1) judges have more discretion over economic awards, which they exercised to the disadvantage of women; and 2) no-fault deprived women of bargaining power &endash; that is, they could no longer extract favorable economic settlements by refusing to go along with a divorce. However other studies have found that changes in the law governing spousal support and property division had much more effect than did the changes in grounds.

Marygold Melli, pg. 323. She disagrees with Weitzman. She says that divorce isn't the reason for impoverishment, it's other reasons. For example, most divorcing people do not have much property to divide. In most states the median net value of marital assets is $25K or less. It was bad before no-fault.
Marsha Garrison (p. 324) - poverty rate for single-mother families with children is more than five times that of married couples with children. The economic advantage of marriage is sufficiently great that even male-headed households have a significantly smaller median income than that of married couples. 1) many women who are poor after divorce were also poor before divorce. 2) a large segment of poor mother-child families reflects non-marriage rather than divorce. Also, there is no way that divorce law can provide a standard of living for families that experience divorce that is commensurate with that enjoyed by the marital household. Secondly, an increasing large segment of poor mother-child families reflects non-marriage rather than divorce.
Susan Prager (p. 325). Marital property law becomes a tool of social engineering, designed to encourage independence &endash; which reflects a societal viewpoint how decisions ought to made on an individual basis. While it is certainly true that in recent years sharing principles have been advanced because of the economic inequalities created by the traditional marriage, it is questionable whether once those inequalities disappear the need for sharing principles will vanish as well. In regard to a separate property system, an individualistic property system will begin to produce behavior that is at cross-purposes with other values, such as stability and cooperation in marital relationships.
Thomas Oldham, pg. 327. (serial marriages). The challenge for the no-fault divorce system is whether it can adequately provide for the custodial parent and the children without placing unreasonable burdens upon the ex-husband's remarriage options. But a women should be required to find work to eliminate some of the financial constraints after divorce. About 60% of married women work outside the home while 75% of divorced women are in the work force.
Schneider, pg. 328. Family law tries to regulate people's closest personal relations and their money. Alimony is thought to enforce the obligation and continuation of family and to protect former spouses from the financial component of injuries. Basically it is a right v. left battle &endash; Right = traditional alimony rules strengthened the family by enforcing the obligations owed to one another. Left = alimony is for rehabilitation or a means for providing self-sufficiency of promoting women's individualistic tendencies.
B. PROPERTY DIVISION AT DIVORCE.

1. Title-based distribution (p. 329 &endash; see Murdoch)
Courts have no discretion for the governing principle is that property is awarded to the spouses as they owned it during the marriage.
In a common law property jurisdiction using a pure title system, the spouse in whose name property was titled would receive it at divorce, subject to any claims of the other spouse based on equitable ownership principles discussed in Chapter 1.
A court in a community property jurisdiction using a pure title system would award separate property to the owner and divide the community property equally.
Today, no common law property state relies on title-based distribution.
It is used in a limited form in CA, Louisiana and NM the three community property states that mandate equal division of community property with very few exceptions and require that separate property be awarded to the spouse who owned it during the marriage.
Basicallybased on ownership during marriage (who has title during marriage).
Joint tenancy property &endash; _ to each spouse.

2. Pure Equitable Distribution (p. 330)
The judge has discretion to divide all the property of both spouses as is "just and proper" of through some equivalent formula.
There is a difference between equitable ownership and equitable distribution. Determining who is the equitable owner of property during marriage is critical to implementing a title-based system of divorce property division, since the equitable owner will prevail over a titleholder who is not the equitable owner.a state that mandates equitable distribution of all property, which spouse owned property legally or equitably during marriage may be relevant but it not determinative of who will get it at divorce.

. Marital Property Systems (p. 330 &endash; most common system).
Medium level of discretion allowed.is the most commonly used in this country. In most community property states, equitable rather than equal division of community property is mandated.addition, most common law property states have gone to a form of "deferred marital property". Under this system, as long as the marriage lasts, each spouse owns and manages assets that he or she brings into or acquires during the marriage. But when the marriage ends, the assets are shared as if they had been acquired in a community property state.
Basically:
Divide equally the property acquired during marriage.&endash; gifts, prop. Owned before marriage & inheritances (but equity based on length of marriage may add prop. Owned before marriage to that of "marriage property" (or that acquired during marriage).

4. UMDA ¤ 307. separate alternatives for property division (p. 331).
Alternative A is for common law property states - calls for equitable apportionment without regard to marital misconduct and shall equitably apportion all property of both spouses taking into account:of marriageprior marriages of either partyantenuptial agreements, health, station, occupationof parties as well as;of a spouse as a homemaker or to family unit. shall consider the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation in value of their respective estates.
NOTE: `Most common law property states now divide property into marital and non-marital shares and allow only the marital property to be distributed at divorce. With the notable exception that in long-term marriages separate property gradually is converted into marital property (and divisible at divorce).

Alternative B for community property states - court shall assign each spouses separate property to that spouse and then equitable distribute community property. It also shall divide marital property, without regard to marital misconduct taking into account:of each spouse to acquisition of the marital property, including contribution of spouse as homemaker
value of property set apart to each spouseof marriagecircumstances of each spouse when the division becomes effective.
Note that marital property under the original version of the UMDA did not include the increase in value of property acquired prior to the marriage don't some cases include this?
Note that most common law property states now divide property into marital and non-marital shares and allow only the former to be distributed at divorce.in common law property states have generally held that a statute providing for equitable distribution of property at divorce does not violate due process, even though it permits a court to award one spouse property that was owned by the other spouse during marriage. see Rotham v. Rotham (p. 333)

5. The Uniform Marital Property Act
Provides that property acquired by either spouse before adoption of the act remains the separate property of that spouse.drafters perceived that changing separate to marital property during an ongoing marriage might be unconstitutional.meaning of equitable distribution. As many as 38 factors have been identified in these cases.

6. Oregon ("Marital Property" state w/ a twist)

Oregon &endash; is a Marital Property state, but in longer marriage the ct's use pure equity distribution.
Look at whether they kept $ separateat title arrangements.
Called Deferred Marital Property System. Where they treat as equity DURING marriage then teat as marital property AFTER marriage.

In the matter of the Marriage of Pierson (Or. Sup. Ct. &endash; p. 335)
Facts: 24 year marriage. Children are grown and parties are in 40s. Wife inherited land from her father. Husband asserted that the inheritance should be considered as part of the marital assets, one-half of which should be awarded to him.
ORS 107.105(e) - provides there is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held. Here, the court concluded the inheritance was marital property, but the presumption was rebutted b/c wife inherited it after the parties separated. That does not mean however, that we accept wife's contention that she should receive her inherited property entirely plus exactly one-half of the remaining property. This is b/c the statute calls for a just and proper distribution.
Policy: The need in this case is to enable both spouses to emerge from the marriage and recommence life on a sufficient economic footing. Because the husband has less income and less property, he should receive the greater share of the non-inherited property, but the imbalance should be reduced to avoid unreasonable disproportionality.
Two theories of distributionproperty awards should be based on each spouse's contributions to the acquisition of assets during the marriage.we should seek to allow the former spouses to live their post-divorce lives as independent actors by dividing property according to need.
modern property division tries to minimize post-divorce contactsPierson opinion analogizes marriage to a business partnership. When a business partnership is dissolved and the business is ended, all the assets of the partnership are divided equally after returning the capital investment of each partner. Business law instead of family law can apply to real partnerships. All empirical data shows that women tend to receive _ or more of marital assets using equitable distribution.
7. Valuing Homemaker Contributions (p. 338-343)
a common law property jurisdiction using traditional title-based system of property division, a spouse who did not work outside the home throughout all or most of the marriage would ordinarily receive little or no property at divorce because her work as a homemaker was not recognized as a financial contribution to the acquisition of property titled in her husband's name. (See p. 340)
3 ways to value:
Presumed &endash; value same as other working spouse based on value to market workers.
Tasks &endash; break down each job homemaker does and value each task (each task would add up to real value of contribution).
Judge assesses on a case-by-case basis.
Pierson and UMDA ¤ 307 indicate, an important reason that common law property states moved to equitable division of property at divorce was a changed understanding of fairness to homemakers.some southern states wives receive property on the basis of their contributions through labor to the acquisition of property.
West Virginia - pg. 341, looked to the quality of the homemakers service - frugal or not.
Marvin v. Marvin (p. 342) - homemaker adequately compensated for her services during her marriage to Lee Marvin and not entitled to any compensation after marriage.

Martha Fineman, (p. 345). Rules of property distribution applied to all women but based on the experiences of only some. One way of restating this is to say that the cost to women of deviating from the traditional housewife model is extremely high.

ALI Family Dissolution Principles (p. 346) - recommend a presumption in favor of dividing marital property equally but allow the presumption to be rebutted by a showing that one spouse is entitle to more on the same grounds that would justify a spousal support award or that a spouse misappropriated marital property.
8. Use of Fault in Dividing Property
states don't use.fault = behaving badly towards one anotherfault &endash; (see p. 342) Calculated thievery of assets rather than misleading.contribution / dissipation. Really don't use fault in division of property until it gets to the K for murder state b/c most/all spouses argue that both were bad (rehashing marriage &endash; like in traditional fault based divorce.one-fourth of state statutes list marital fault as a factor that may be considered in property division and another fourth, like UMDA ¤ 307 explicitly exclude marital misconduct as a factor.courts today exclude marital fault as a factor in property division, and even where fault can be considered, courts often relegate it to a minor role.more than half of the states economic misconduct is a factor in property division., pg. 343
Torts suits between spouses or recently former spouses have become more common and they act as a vindication based on $$. (Based on intentional infliction of emotional distress, toritous infliction of venereal disease, negligence, and fraud. Note: only a bad lawyer would allow a claim by one spouse to go unanswered.

9. Dividing Debts

Geldmeier v. Geldmeier - Husband appealed b/c the court divided the marital property and debts in such a disproportionate manner. Awarded him more debts than property. Its division must be just and equitable, but an equitable division need not be equal. The courts order sought to divide the property in such a manner that the children, placed in wife's custody would not be wrenched from the security of the family home during their minority. The award was ok, no abuse of discretion.
Methods for dividing debt (p. 367):
Equitable division of all - treat as distinct issues the division of assets and the division of debts, dividing each equitably.
Divide debts proportionately to division of assets - treat division of assets and debts as distinct issues but allocate responsibility for debts in the same proportion that assets are awarded.
Total netting out - from the total value of the divisible assets subtract the total amount of divisible debts. Divide the remainder if any.
Netting out of specific assets - when an asset is specifically encumbered, value the asset at the difference between its market value and the debt (sometimes expressed by saying that until the debt is paid, the asset is not yet fully acquired; at the time of divorce the asset is acquired only to the extent that it is free of debt).
Remember there may be a difference between marital debts and separate debts. Ordinarily a debt is marital if it was incurred for the joint benefit of the parties or in acquiring a marital asset.
An agreement between spouses regarding the allocation of debts does not bind creditors.Marital Home (p. 396)- The Geldmeier court sanctioned the common practice of ordering a division of the house but not requiring its immediate sale. Basically, gave a lien interest to the other spouse. Studies show spouse w/custody of the children is still likely to be awarded possession of the house, although this tendency decreased over the 1970s and 1980s.courts have assumed that they have authority to allocate responsibility for paying debts.

. Oregon Statutes, pg. 31

ORS 107.105. Provisions of decree (factors to consider). Section 1(e) & (f) - distribution of property just and proper in all circumstances. Consider contribution of wife as a homemaker. The present value of and income resulting from, the future enhanced capacity of either party may be considered as property. The presumption of equal contribution to the acquisition of marital property, however, shall not apply to enhanced earning capacity. A spouse asserting an interest in the income resulting from an enhancement of earning capacity of the other spouse must demonstrate that the spouse made a material contribution to the enhancement. The contribution shall have been substantial and of prolonged duration.
ORS 107.088. Clerk of Court to furnish certain information when petition is filed.
ORS 107.089. Documents parties in suit must furnish to each other; effect of failure to furnish.
ORS 107.092. Notice that spouse may continue health insurance coverage; content; liability of clerk.Support at Divorce (or alimony)

C. SPOUSAL SUPPORT (pp. 370-401)

1. Introduction

Chester Vernier and John Hurlbut (p. 370) - Husband's legal duty to maintain wife was not severed by the divorce decree. The primary object of the order for permanent alimony was to provide continuing maintenance for the wife. The ultimate considerations were the needs of the wife and the ability of the husband to pay. If the wife was guilty of misconduct, it was suggested that he might not need to pay.
Catherine Peele &endash; (p 372) - Either the man resents alimony or feels that it is his penance. Either way it perpetuates a relationship that both people want to end. The payment of alimony can be a symbol of power to both the man and the woman concerned and this is probably the usual reason shy some women state, as many do, that they will accept support for their children from the children's father, but that they themselves will not under any circumstances take any money for themselves.
Changing Attitudes Toward Spousal Support in the No-Fault Era (p. 374). In the 1970s and early 80s the duration of spousal support has been limited in a number of states. - 10 years in Oregon &endash; See ORS 107.407 and 107.412. In the 1980's some sentiment changed and realized that sometimes property division wouldn't cover a former spouses needs and so some legislatures and courts have rejected a preference for limited-term awards or have even created a preference for indefinite awards in some circumstances. Sometimes you look at how long the spouses were married. Long-term spousal support to provide for dependent spouses continues to be controversial however.
Paula England - Employment and Gender (p. 377). To call an investment relationship specific means that it has value only within the current relationship and would be of no benefit in the different one (i.e., learning to fight, make-up, sexual preferences, developing relationships with in-laws). Individuals invest in human capital whenever they forego something desirable in the present to develop a personal attribute which will pay off in the future, whether in a job or household relationship. Men typically make fewer relationship-specific investments than women, accumulating instead resources which are as useful outside as within their current relationship.

Ira Mark Ellman (p. 378) - Theory of alimony. Marital specialization - one spouse in the market, the other at home. Alimony is intended to compensate for the residual loss in earning capacity that arises from the kind of economically rational marital sharing behavior we have just seen.
Thomas Oldham (p. 379) - putting asunder in the 1990s. Even if one accepts the view that almost all of the wage gap stems from actual or potential child care responsibilities, it does not follow that the full cost of these employment disabilities should be borne by the husband. It is not fair to ask the husband to compensate the wife for all career damage she incurred on the expectation that one day she would assume child care responsibilities.
Joan Williams, Is Coverture Dead? (p. 380) - Says husbands are lucky b/c even after divorce the wives still care for the children. Her analysis of the dominant family ecology suggest that the wages of the family should be jointly owned. The way to accomplish this is by equalizing the incomes of the two post-divorce households.

2. Applying the Changing Views.

Spousal Support:
Most people can't afford it.- based on fault, which is based on tort & K theory. When fault was abolished so was underpinnings of spousal support.on need of recipientjustifies the need?

UMDA &endash;The UMDA has preference for using property division, rather than spousal support, as the primary vehicle for financial settlement between spouses furthers the goal of providing the parties with a clean break. Property division awards are final, eliminating the subsequent modification problems and no continuing enforcement problems.
UMDA contains 2 sections:
The court may grant a maintenance order only if it finds that the spouse seeking maintenance:sufficient property to provide for his reasonable needsunable to support himself thought appropriate employment (or is the custodian of child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
The maintenance order shall be for a period of time the court deems just, without regard to marital conduct . . . after considering the following factors:
the financial resources of the party seeking maintenance, including marital property apportioned to him, his ability to meet his needs independently, and the extent to which a provision for support of a child living with the party includes a sum for that party as custodian (child support allowance)time necessary to acquire sufficient education or enable the party to find employmentstandard of living during marriageduration of marriageage and physical and emotional condition of the spouse seeking maintenanceability of the other spouse to pay

NOTE:
1. Even though courts sometimes say that they award spousal support to keep the recipient off the welfare rolls, most courts have held that a person who can earn just enough to subsist is not self-supporting for these purposes, at least if the marital standard of living was substantially higher.

. MOST STATES PROVIDE THAT IF SPOUSAL SUPPORT IS NOT AWARDED AT TIME OF DIVVORCE, IT CANNOT BE ADDED LATER. BUT A CT. MAY GRANT NOMINAL SUPPORT AND THEN ADJUST UPWARDS.

Turner (p. 383)	Larocque (p. 386)	
22 yrs married	25 years married	
45 & 49 yrs old (parties)	46 & 48 yrs old	
Homemaker/professional	Homemaker/professional	
2 kids @ home (1 long term)	No kids	
W- got $80K in cash	W &endash; got $43,474 house.	
W- $50 wk for 18 months for rehabilitative purposes (she will finish school and get teaching certificate)	Trial ct. &endash; gave $1,500 per month for 5 months, then $1,000 for 13 months.	
"You can't expect that a woman will be maintained at the lifestyle she lived before."	"You want the person to reach the standard of living they are accustomed to."	
	pg. 388 - lists factors to be considered in support awards - length of marriage, age, education, etc.	
Difference between the two:
How each Ct. determined need. See last full row above.'t Larocque double-dipping? She had already received "compensation" in the form of largedivision. Larocque &endash; basically &endash; same lifestyle as marriage

Note: The purpose of these cases is not to put both back into same position prior to divorce, but support was a short term rehabilitation for each (so they both could go back and teach). In Larocque &endash; she was given extra b/c she stayed home and he received benefit from it (see homemaker above).
Other stuff: .
The definition of need for support varies - however parties usually submit detailed budgets to prove their needs. pg. 393.some states limited-term support awards may be modified if a spouse is not able to become self-supporting at the end of the support period (Oregon).the era of fault-based divorce a wife's misconduct could either bar her from receiving alimony or limit the amount, and in some places the husband's fault could be a factor for increasing the amount. In more than half the states today fault is not a factor in determining spousal support. UMDA ¤ 308 precludes consideration of marital misconduct.
Two spousal support terms (duration)&endash; payor obligated to pay until they (payor) prove changed circumstances. Payee can also petition for more due to changed circumstances.Term &endash; payee carries burden of proving the plan implicit in the order didn't work out (why they need more)definite duty to manage $$ well, but it's implied that you should.much you get depends on factors. See ORS below.

Chalmers v. Chalmers (New Jersey) (p. 395) - We are satisfied that the concept of equitable distribution requires that fault be excluded as a consideration. Marriage is such an intricate relationship that often it is difficult if not impossible to ascertain upon whom the real responsibility for the marital breakup rests. This is in regard to property the court mentions that it might be considered in awarding alimony (fault might be considered).
3. Oregon Statute (spousal support)
ORS 107.105(1)(d) - spousal support statute (ct. may award based on certain factors)

D. DIVORCE AND NEW PROPERTY (goodwill, degrees, pensions, etc &endash; pp. 401-446)

1. Generally
New property (intangible assets)- pensions and other employment benefits, goodwill of small businesses, professional licenses and educational degrees.these were not considered divisible property, but as potential sources of income from which spousal support could be paid.for self-support unlike with alimony does not bar property division.
When treated as property, courts must assign a present value to them. This is difficult.

Ways to establish value:
Goose's salvage value pg. 403. - assets that continue to produce income are almost always going to be worth more than their salvage value, although their total value includes their salvage value.
Book value - what you paid for something. This has no relationship to the present value of the item.
Time value of money - the price today of one egg to be delivered in a year should be an amount that, when invested, will produce $10 in a year. Then you come up with the discounted cash flow method. - the key thing is determining the interest rate. The higher the rate, the lower present value is.

Fleege (p. 426): Goodwill is property of an intangible nature and defined as the expectation of continued patronage. Dentist is saying his "goodwill" is not separable from his person. Wife: the K for the sale didn't state that there was any goodwill, but people wanted to buy the practice and thus the practice existed aside from him.
Note: former spouse w/never be made a partner, so how do you pay out $$ if their spouse owns a business? Perhaps pay off over time, sell & pay diff. Between value assessed at divorce and actual sale price. Determining Value &endash; look at market, p'ship agreement, trade journals, etc. Prof. Business is more likely to be treated as "property" if it can be sold, or here is evidence the "practice" exists aside from the individual and there is marketability.
Prof. Business: treated as property because spouse helped create the business. If treated as property you can't modify the divorce decree.

. Pensions and other employment related benefits.
Traditionally employee's pension rights and other benefits were often very ephemeral; many plans provided that an employee has no absolute right to a pension unless he or she worked for the employer for many years and was employed by that employer at the time of retirement.tended to hold that, under these conditions, pension rights could not be considered property., employees covered by qualified plans are guaranteed that even after relatively short periods of employment, their interests in the plan will vest. this is b/c of the Employee Retirement Income Security Act (ERISA).
plans differ according to who pays for the plan and how benefits are determined.
Contributory Plan - both the employer and the employee contribute toward the cost. Here the employee's contributions are immediately vested, so the employee is entitled to them even if he or she quits participating in the plan before retirement. The employee's interest in the amount attributable to the employer's contributions may not vest until the employee has worked for a defined period of time, although ERISA limits how long the employer can delay vesting of pension rights.
Noncontributory Plan - Only the employer contributes.types of plans have a time at which the employee is eligible to draw retirement benefits - that is, when the benefits mature. Before this time the benefits are unmatured.
Defined Contribution Plans - each employee has a separate account and the amount of the employee's benefits will depend on how much is in the account through contributions, interest earned, and any other increase in value when the employee begins to draw benefits.
Defined Benefit Plans - an employee's benefits are determined on the basis of a formula, usually based on years of service and salary, which does not depend on the amount of contributions.of these plans can be contributory or noncontributory.

Laing v. Laing - pg. 406. Facts - in dividing up the Laings' marital assets, the court awarded the husband his pension and awarded the wife offsetting marital assets. The husband challenged the award citing insufficient evidence for the figure the court determined to be the value of his pension.
Rule - a nonvested pension right is a marital asset The court said you could not do it in a lump sum at the time of divorce if it is not vested - b/c the method unfairly places all risk of possible forfeiture on the non-employee spouse. Therefore they had a reserved jurisdiction approach. The trial court retains jurisdiction and orders the employee spouse to pay to the former spouse a fraction of each pension payment actually received. The court's analysis assumes that the principal problem with treating pensions as property is that they may be "mere expectancies" rather than "contingent future interests." Also remember that pensions are not transferable like other property.
Two basic ways that courts divide pensions
The present value or the offset approach - the court determines the present value of the employee spouse's right to receive payments from the pension in the future and awards those rights to the employee, and awards the non-employee spouse other marital property in lieu of his or her share of the pension.
The reserved jurisdiction approach - each spouse receives a fractional share of each pension payment as it comes due. IF, AS & WHEN.
Third method (p. 407, note 21) &endash; award non-employee spouse a %'age of the employee spouses' contribution plus interest.
_ Retirement Equity Act of 1984 - allows the non-employee to retain joint and survivor annuity benefits. pg. 409
3. QDRO - Qualified Domestic Relations Orders (see p. 411)
of the most valuable employment-related benefits is the right to participate in group health or life insurance, because group insurance may not require proof of insurability and group rates are often substantially lower than the cost of similar coverage under an individual policy.now protect divorced spouses against loss of health insurance coverage. - for up to 36 months - COBRA - omnibus budget reconciliation act. Spouses must pay premiums to continue participating.
Security, Military and other federal pensions
Sometimes federal pensions cannot be marital property because of anti-assignment and anti-alienation clauses. Hisquierdo v. Hisquierdo.
Military Retirement Benefits. McCarty - can't treat as marital property. In response to McCarty congress enacted the Uniform Services Former Spouses' Protection Act which provides that each state's divorce courts may treat disposable military retired pay or retainer pay according to the state law governing division of marital property.
The Supreme Court has said that USFSPA did not completely eliminate federal preemption and concluded that military disability pay is not divisible marital property because the USFSPA definition of disposable retired or retainer pay excludes retirement pay waived to receive disability payments.
Civil Service Pensions - allowed as marital property.
Social Security - most courts have held that SS benefits are not property subject to division and that their value may not be considered in the division of property due to anti-assignment and anti-alienation provisions. Further the SS Act exempts from the anti-alienation protections actions to enforce a beneficiary's legal obligations to support a spouse, former spouse or children. SS can be treated as income though for purposes of spousal support. pg. 416 contradictions with SS??? NOTE: Divorced spouses are entitled to receive SS benefits if married at least 10 years. The spouse however must remain single.

. Oregon Statutes
ORS 107.105(1)(f). division of property - rebuttable presumption of equal contribution.
5. Degrees, Licenses, Jobs and Earning Capacity

Mahoney v. Mahoney &endash; (p. 437)
Facts - during their marriage, wife worked so that husband could obtain an MBA. When husband filed for divorce, wife petitioned for an equitable distribution of the marital property, including the MBA. The trial court ruled that the degree was property and that wife was entitled to recover her contribution to the degree.
Rule - While a spouse who has contributed to the attainment of a professional degree is entitled to recover a specific dollar contribution, the degree itself cannot be considered property since the future monetary value of a degree does not lend itself to accurate valuation.
Reimbursement Alimony - this should cover all financial contributions towards the former spouse's education, including household expenses, educational costs, school travel expenses and any other contributions used by the supported spouse in obtaining his or her degree or license.
O'Brien v. O'Brien - pg. 440. Facts - following the O'Briens' divorce, the trial court ruled that Mr. O'Brien's medical license was property subject to equitable distribution. When appellate court reversed, wife appealed. Rule - a license to practice medicine, acquired during the marriage, is marital property subject to equitable distribution. Although fixing the present value of that enhanced earning capacity may present problems, the problems are not insurmountable.
NO STATE COURTS FOLLOW O'BRIEN in treating a degree as property except two panels of the Michigan Court of Appeals. Even though only a few states treat degrees as property, most are willing to give relief to the spouse who is divorced at or near the end of the other spouse's professional schooling. pg. 443. See - Ann Laquer Estin - Most courts specify that compensation is not appropriate for homemaking rather than financial support. See also CA Family Code reimbursement for education expenses.
6. Oregon Statutes
ORS 107.105(1)(d)(C) - compensation for education is a factor to be considered in awarding support.
 
. PARENT-CHILD SUPPORT DUTIES (pp. 447-498)

A. CHILD SUPPORT

1. Introduction

Basically:
1. Parents have duty to support the child
. If parents neglect children then state steps in.
. Necessities doctrine exists in "theory" for children.
. Child can't sue for support.
Overview of Child Support:
Courts have statutory authority to order child support in divorce (paternity stats. also do this).can modify &endash; even if not awarded at time of divorce (unlike spousal support)support is easier to justify than spousal support b/c child is always entitled to support.&endash; obligor normally pays custodial parent cash, can't substitute material goods.

Leslie Harris &endash; (article on p. 448).
Physical custody - living with and caring for the child day to day.
legal custody - the authority to determine how children will live and behave.
Parent child relationships are based on exchange. I'll pay if you do this or if you spend time with me. Making parents' duty to support their children legally enforceable inherently limits the parents' control to some extent. However, in the intact family children cannot sue their parents to enforce this duty, for such suits would interfere too much with parental autonomy.have enacted family expense statutes which are like the necessaries doctrine. Liability exists only for family expenses. Further the statutes permit only suits by creditors; they do not authorize one family member to sue another for support.is a lingering belief that support duties should coincide with custodial rights.

. Determining the Level of Support. (p. 451)
legislation enacted during the 1980s mandates that all states use child support guidelines. The Child Support Enforcement Amendments of 1984 , required child support decision-makers to be provided with guidelines, but not that they adhere to them.
Family Support Act of 1988 requires states to promulgate guidelines applicable to all administrative and judicially established child support orders within the states. Factors to be considered in the guidelines are on pg. 452. There should be allowed a rebuttable presumption in the guidelines.child support guidelines required parents to share the costs of raising a child according to their income. While this approach has substantial intuitive appeal, no state today bases its guidelines on this approach.
Robert Williams (p. 454 & p. 456) - guidelines for setting levels of child support orders. The problem is that most expenses related to child rearing are commingled with expenditures benefiting all household members. What are the normal levels of spending on children within households above the poverty level? Also &endash; everyone agrees that there is no absolute cost to raising a child. Espenshade study(p. 454) &endash; ($589 per month for one child, $914 per mo. For 2 children, and $1,145 for 3 children). There is a common misperception that the declining increments primarily reflect economies of scale in rearing children. Instead, these figures seem to indicate a decreasing level of expenditures for each child as family size increases.
Three basic systems:
Cost sharing &endash; how much it costs to raise a kid. Have parents split that cost. Nobody uses anymore b/c nobody knows how much it costs to raise a child.
Income sharing &endash; most statue use &endash; calculate parents income and amt. Paid is proportionate to their income.percentage (flat %)share systemFormula
Income Equalizing &endash; look at the two household, take the two incomes, put together & equalize it. If custodial or non-custodial parents are re-married then new person's income must be figured into the formula. Problems with it related to the fact that a spouse may be paying for a child that's not theirs. However, the good side of this is that the children of both share in the economic benefits of both parents.

. Three "Income Sharing" Models Used to Determine Support Levels (p. 456).

a. Flat percentage guideline
Sets child support as a percentage of obligor income, with the percentage varying according to the number of children. (17% for one child, 25% for two, 29% for three, 31% for four and 34% for five. For example: if Obligor's gross income was $1,600 and there are 2 children you would take $1,600 and divide by 25% which = $400.)
Some are based on gross income (before tax) while others are based on net income (after mandatory deductions).flat percentage guideline does not consider custodial parent income nor make separate provision for child care or extraordinary medical expenses.
Wisconsin uses this.a tax, then the employer can be ordered to withhold a percentage of obligor income for child support and the order can be self-updating as obligor income rises or falls.
. Income Shares Model
Most states use this. Basically &endash; calculate parents income and amount paid is proportionate to their income. Based on the precept that the child should receive the same proportion of parental income that would have been received if the parents lived together. Thus, the income shares model calculates child support as the share of each parent's income estimated to have been allocated to the child if the parents and child were living in an intact household.
There are three basic steps
Income of parents determined and added together (Ex: $1,600 + $1,200 = $2,800)estimated amount is derived from economic data on household expenditures on children. A total child support obligation is computed by adding actual expenditures for work-related child care expenses and extraordinary medical expenses.total obligation is then pro-rated between each parent based on their proportionate shares of income. (Ex &endash; con't from #1: Father's share &endash; 1600/2800=$58.14% - get by dividing one into the other; Mother's share= 1200/2800 = $42.86%)model incorporates a self-support reserve for the obligor, under which the formula is not applied in determining child support until an obligor's income exceeds the poverty level.
. Delaware Melson Formula
Parents are entitled to keep sufficient income for their most basic needs to facilitate continued employmentthe basic needs of children are met, parents should not be permitted to retain any more income than required to provide the bare necessities for their own self-supportincome is sufficient to cover the basic needs of the parents and all dependents, children are entitled to share in any additional income so that they can benefit from the absent parent's higher standard of living.
Thirty two states have adopted the Income Shares Approach, 13 states use the percentage of income approach.
d. A fourth approach
This was developed by Judith Cassetty and is intended to provide equivalent living standards for each parent's household. (See p. 458-459 if comes up on test)
e. Oregon's

Oregon &endash; uses a variation of "Income Sharing" by using "Income Shares" to determine percentage of amount owed. See the OAR's which begin on p. 100 of the supp.
Process to determine each parent's support duties:
Determine "gross income" &endash; see OAR 137-50-340 through 137-50-365."adjusted gross income" of each parent (if there are two parents, the combined "adjusted gross income"there are two parents, determine the percentage contribution of each parent by dividing the combined "adjusted gross income" into each "parent's adjusted gross income" (Ex: Father $1,600 + Mother $1,600 = $3,200 then take each parent and divide their %'age into each &endash; i.e., 1,600/3,200=50%.the "basic child support obligation."the "total child support obligation."each parent's "child support obligation" by multiplying the percentage figure from subsection (c) by the "total child support obligation."
Adjust the "child support obligation" determined in subsection (f) in consideration of health insurance costs as provided in OAR 137-50-410, medical expenses as provided in OAR 137-50-430, and child care costs as provided in OAR 137-50-420.where the shared physical custody rule, OAR 137-50-450, or the split custody rule, OAR 135-50-460, applies. If they do, then apply them and adjust each parent's "child support obligation" pursuant to the applicable rule.

When done with the above &endash; it is a rebuttable presumption. Spouses can fight the allocation. See Ors 25.280 (rebuttable factors). Note: rebutting doesn't take place very often because it requires a written finding or a specific finding on the record that the application of the formula would be unjust and inappropriate.
NOTE: changes in spousal income are dealt with through the modification process of support decrees. Normally &endash; these orders are updated automatically.

. Constitutional challenges
Parents Opposed to Punitive Support v. Gardner - P claimed that despite the characterization as "rebuttable" the guidelines were in fact conclusive, b/c while parties could seek exceptions to the guidelines, there was no opportunity to challenge the guidelines' assumption about the costs of raising children. The court said the legislative definition of the level of parental support expressed in the guidelines reflected legitimate social policy. Also conclusive presumptions were upheld in Michael H. v. Gerald D. The Parents Opposed to Punitive Support also claimed that the child support guidelines unconstitutionally burdened non-custodial parents' opportunity to remarry. Applying rational basis scrutiny, the court held that requiring judges to follow the child support formula unless they stated a good reason for deviating was a rational way to ensure adequate support orders and to encourage settlements.guidelines for joint physical custody issues on pg. 462.

Peterson v. Peterson (p. 463 &endash; S.D) - 11 year marriage with 2 children. Wife got custody of children and $250 per month per child - wife wanted more child support. She said the trial court failed to include certain items in Gregory's gross income in determining support. - like property. The trial judge raised support to $665 total. We rule that the trial court correctly interpreted the guidelines and acted within the bounds of its discretion when it increased Gregory's monthly child support obligation.argues that the lower court abused its discretion by first, not considering money earned (but never actually received) by Gregory which was put back into the family business and second, by awarding a sum that is mathematically at a lower percentage of net income than that give other income brackets under the statute.Court said that here Gregory did not receive the rental or interest income, he was without power to guide the disposition of this income, and the expenditure of the income did not inure to his benefit- so not included as income.in regard to income - when confronted with an obligor with a net monthly income greater than $1,500 the trial judge must use discretion which is tempered by the requirement that it have a sound basis in the available evidence. The court needs to consider children's needs and financial situation of husband and the wife's new spouse. The support order is good b/c it provides more than the highest guideline amount and the support is not for the wife.

_ Generally courts have held that just because an item is deductible for purposes of the federal income tax it is not necessarily deductible for purposes of calculating child support.
_ Generally child support guideline definitions of income are very broad and courts have construed them broadly. Retirement income and Social Security have been treated as income. On the deduction side, legitimate business expenses are generally deductible for owners of small businesses.
_ As a practical matter - the child does share the basic lifestyle of the custodial parent, and child support inevitably affects that parent's lifestyle. see Hubner (p. 469, n.5) - you look at the non-custodial parents wealth - and to some degree the custodial spouse will benefit from this.
_ Majority of courts hold that it is not permissible to go lower than the guidelines.

. Medical expenses
In 1993 Congress enacted legislation requiring states to have laws preventing employers from denying enrollment to employees' children not living with the employee parent, born outside the marriage, of not claimed as a dependent by the employee for federal income tax purposes. - health insurance. The plan must allow the custodial parent to enroll the child.1993 legislation also amended ERISA to require covered group health plans to honor a qualified medical child support order (QMCSO). This is like the QDROs for I think employment and they must be honored by the insurance plan administrator.

. Oregon statutes
ORS 107.105(1)(c). support of children.
ORS 25.010. Definitions for support enforcement laws. pg. 2
ORS 25.240. pg. 8. Order to pay support by parent with legal custody of minor.
ORS 25.245. Rebuttable presumption of inability to pay child support when parent receiving certain assistance payments. ??
ORS 25.270. pg. 12. Legislative findings. Family Support Act of 1988 mandating formula for child support awards.
ORS 25.275. Criteria to be considered; mandated standards; reduction.
ORS 25.280. Formula amount presumed correct; rebuttal of presumption; criteria. (I think that is the criteria for rebuttal).
ORS 25.290. Determining disposable income of obligor; offsets. Offset for necessary business expenses.
ORS 107.106(1)(a). pg. 34. Additional requirements of decree. Need for insurance for the child.
ORS 109.010. pg. 60. Duty of Support.
ORS 109.015. Proceedings for child support if child receives public assistance. Department of Human Resources can initiate a proceeding for child support.
ORS 109.020. When child's maintenance and education may be defrayed out of income of own property.
ORS 109.100. Petition for support; effect of order; parties. pg. 63.

7. OAR's Establishing Child Support Formula. (p. 100)
Support Guidelines (OAR's)
137-50-320. Definitions.
137-50-330. Computation of Individual Child Support Obligations. - note that although a monetary obligation is computed for each parent, only the non-custodial parent will be ordered to pay support except in share custody and split custody cases.
137-50-335. Implementation of Changes to Child Support Guidelines.
137-50-340. Gross Income.
137-50-350. Income from Self-Employment or Operation of a Business. Gross income is defined as gross receipts minus costs of goods sold minus ordinary and necessary expenses required.
137-50-360. Potential Income. there will be a rebuttable presumption that a parent can be gainfully employed on a full-time basis.
137-50-365. Temporary Income. you can include in income.
137-50-370. Income Verification.
137-50-390. Spousal Support. deduct from gross income.
137-50-400. Nonjoint Children. Credit to parent. A parent's gross income plus or minus any spousal support, minus non-joint child credit, is the parent's adjusted gross income for calculation of basic child support.
137-50-410. Health Insurance. When the obligor provides health insurance coverage for the child or children, the amount of the child support order shall be reduced by an amount equal to the obligee's pro rata share of the obligor's out-of-pocket costs of health insurance for the child, which is determined by the obligee's proportionate share of the combined income of the parents.
137-50-420. Child Care Costs.
137-50-430. Medical Expenses. Recurring medical costs.
137-50-450. Shared Physical Custody. 65/35.
137-50-460. Split Custody. each parent has physical custody of at least one child.
137-50-470. Minimum Order. $50 per month.
137-50-490. Scale Used in child Support Determinations.

B. SUPPORT FOR OLDER CHILDREN

Leslie Harris. Today we ordinarily think of parents' support duty as terminating when a child attains the age of majority.
Emancipation - in a formal sense, means the termination of some or all of the mutual rights and duties of the parent-child relationship.parents voluntarily support older children, but the question is whether parents are or should legally be obligated to continue to support them...

Childers v. Childers - pg. 475. Facts - the trial court awarded custody of the children to the wife. The court's order required that the husband pay for their three son's college education. If each son complete his baccalaureate degree each would be 22 years old and four years beyond the age of maturity.
Rule - A parent may be required to support a child beyond the age of majority while a college education is pursued. The statute got rid of minority and substituted the word dependent children. The statuses of dependents and emancipateds' are to be determined under the facts of each case - unlike with minors. You want to consider the advantages (educational or otherwise) that the child would have been afforded if his parents stayed together. The Duty to support can be extended to education - the type and extent to be determined under the facts of each case. see Esteb. However, if the parent does not have the ability to pay because of his station in life, you cannot have him pay for an education. see Golay.
Other related aspects (notes on pp. 482-484):
Many fathers who pay all their child support over the years and maintain close contact with their children draw the line at college.can't get financial aid because they look at both parents - even if one doesn't pay.child support guidelines do not address specifically parental responsibility for supporting children in college.a minimum most states have adjusted the date of termination of child support to require support children older than 18 who are still dependent in the sense of living at home going to high school.Penn the Supreme Court held that a statute allowing courts to order divorced parents to pay support for adult children attending school violates the Equal Protection Clause - this is the opposite of Childers.are divided about whether parents may be ordered to support adult disabled children who are incapable of self-support.principles that determine when divorced parents must pay for their children's post-secondary education also applies to children born outside of marriage.modern trend is to impose a support duty. pg. 483states allow you to establish an educational trust.children who are unemployed may be required to purchase insurance.
ORS 107.108 &endash; support for child attending school.
Dependent children &endash; doesn't imply a minor. Minor children &endash; cts. Are reluctant to extent support beyond high school.

Roe v. Doe (NY - p. 484). Facts - the father terminated support of 22 year old daughter when he found out that she had deceived him by moving into an off-campus apartment. near the University of Louisville. Rule &endash; where a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent's home against the will of the parent and for purpose of avoiding parental control, she forfeits her right to demand support. Basically - The father has the right, in the absence of caprice, misconduct or neglect to require that the daughter conform to his reasonable demands. She tried to frustrate her father's control and the court said "she cannot enlist the aid of the court in frustrating that authority (reasonably exercised)" Judge Jason &endash; would make parent have damn good reason to stop support.:courts hold that parents can be ordered to support their adult children, provided the children behave in what the courts consider to be a reasonable manner.hold that parents obligated to support their adult children may not condition their payments on their children's behavior.
Oregon &endash; child has to get a C, and give parents copy of grades. (see Oregon Statutes below)cases are &endash; "I hate you just send the $$."on p. 484 &endash; see my notes.
. SUPPORT FOR PARENTS

1. Introduction
there circumstances where children are required to support their parents? Yes!responsibility laws &endash; statutes provide for welfare reimbursement from other (richer) family members. These aren't enforced often b/c Federal Law preempts.here is a trend to provide support for parents, but does it follow that because adult children do often provide support for their parents, they generally should be required to do so?

Americana Healthcare Center v. Randall (p. 490)- son's mom has Alzheimer's and he put her in a nursing home. At common law, an adult child was not required to support a parent. Son claims the law (which requires "every adult child, having the financial ability . . . shall provide necessary food, clothing, shelter or medical attendance for a parent who is unable to provide for himself") violates Equal Protection Clause because it discriminates against adult children of indigent parents. The court rejects this argument. The fact that an indigent parent has supported and cared for a child during that child's minority provides an adequate basis for imposing a duty on the child to support the parent - so there is no arbitrary classification. And there is a rational relationship between the classification and the purpose. Son is forced to pay medical bills.
Swoap v. Superior Court &endash; (p. 4930. Facts - two recipients of aid to the aged and their adult children brought a class action opposing the requirement that adult children reimburse the state for aid given to their parents. They claimed that such a requirement discriminated against people based upon their wealth. Rule - provisions requiring children to support needy parents, while potentially harsh in certain instances, are constitutional. Dissent - such provisions should be invalidated as a denial of equal protection of the laws since they shift subsistence funds from one generation to the other. The children should not be saddled with unjust demands that keep them at or near poverty level with no hope to escape it, just because the parent still breathes. Parents don't want to do this to their children.: The state selects the children to bear the burden not on the basis of wealth, but on the basis of parentage. Therefore no suspect classification. Is wealth a suspect class?
1993 federal rules that determine whether a person can transfer assets into a trust and still become eligible for Medicaid were substantially tightened. Generally all the applicant's income is considered available to pay for care. Also limits children or other family members to make voluntary contributions. Under the new rules &endash; any gifts of $ or even material goods may be applied to eligibility requirements (little stuff is no big deal, but TV, etc., may be counted., in general there's lots of children who care for their parents.
Randall mom had $ into trust to try to hid $ to make her eligible for Medicaid. But son was using trust on her behalf while preserving some for himself. Ct. made him pay the trust $ he just received.

. Oregon Statutes
ORS 25.255. pg. 10. Obligor to provide health insurance; reduction of support for such coverage; notice to insurance provider; duties of insurance provider.
ORS 107.108. pg. 35. Support or maintenance for child attending school. Child must maintain a C average. Support is given directly to the child. (this qualifies as a substantial change in circumstances - when the child does not comply with the order.)
ORS 109.010. Duty of Support, pg. 60. Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and children are bound to maintain their parents in like circumstances.
V. MODIFICATION, TERMINATION, ENFORCEMENT (pp. 499-586)

A. MODIFICATION AND TERMINATION OF SUPPORT

1. General modification and termination
divisions are NOT modifiable, while spousal and child support orders are (note: if you don't have a spousal order at divorce you prob. Can't get one later)., when payor dies the obligation ends, but any unpaid payments will probably be taken out of the estate (or the parties may agree in writing to such an extension).
The traditional rule is that, unlike property awards, spousal and child support are modifiable upon a showing of a "substantial (or material) change of circumstances.
An increase in the payors income will not justify an upward increase in spousal support, but may for child support.an order to modify you need a hearing. Until order is modified, obligor is still bound by prior order.law required states to have mechanism in place to have child support reviewed every three years. In Oregon &endash; review is every two years. But, change in circumstances can change this at any time upon a motion..
Review is automatic when child support comes from welfare (i.e., payor is making payments to welfare on behalf of child?)law was changed making the minimum basis for modification the request of a party.&endash; if the person/family is on welfare, the state dispersed the funds and may use funds to reimburse the state.
ORS ¤ 107.135 &endash; vacation or modification of a decree.

. FORESEEABLE changes in circumstances.
In many cases a major issue is the tension between the value of rules that promote stability in orders and those that allow court to respond to changes in individual circumstances.
UMDA ¤ 316 emphasizes stability and provides there must be so substantial and continuing as to be unconscionable - that is the circumstances must be to provide modification.courts say that if it is foreseeable than you cannot modify. But this cannot be taken literally, b/c it is foreseeable that children's costs will increase as they get older.
The Family Support Act of 1988 (now changed) requires states to implement a regular review process that will ensure that child support orders are updated at least every three years. Requirement abrogates the traditional approach under which a child support order, like an alimony order, could be modified only on the initiative of the party who proved a substantial change of circumstances.

. Voluntary versus involuntary decreases in the payor's income
decrease in the obligor's income is commonly asserted as a ground for modifying support.increases such as when the obligor is laid off from work, are generally treated as a sufficient reason to decrease support., courts are not so tolerant of voluntary reductions in income.

Deegan v. Deegan - pg. 502. D would pay alimony to P in amount of $250 per week and the agreement also provided that P would receive one-third of D's annual vacation pay and one-third of the value of his pension from the proceeds of the sale of the marital home. D then retired and moved to terminate alimony. He was 62 years old.
Test: A party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself."
Cases on elective retirement fall into several different categories &endash;
The bright line category - the voluntariness in itself bars application for modification - this is severe.
Motives of the party seeking to make the change - if change is made in good faith than modification ok. 3 Sole purpose category - if the sole purpose is to avoid support, then it is not ok. However the problem with this is that the party moving for modification will always be able to advance at least one legitimate reason for retirement.
Primary purpose - see smith v. smith. there is a more searching inquiry than in sole purpose.
Any negative impact of the payee spouse is considered sufficient to bar modification based upon voluntary retirement.
NOTE: All of these categories have focused on two issues; the motive of the payor and the effect on the payee. In this case they say that whether the spouse can retire will depend on the individual circumstances.
Balancing test - whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse. Only if that answer is affirmative, should the retirement be viewed as a legitimate change in circumstances warranting modification of a pre-existing support obligation.court says that the reason for this is that the duty of self-fulfillment must give way to the pre-existing duty which runs between spouses who have been in a marriage which has failed. Originally lower court found for P that move was voluntary - but this court remanded the case. ** the court says that this issue should have been addressed in the original agreement to prevent this.

Notes (pp 506-507):
1. Oregon in Jones adopted a prejudice to recipient test for deciding when a payor can modify his obligation to his children.
. When loss of income is involuntary because the obligor becomes disabled, the obligor's children may be eligible for Social Security or other benefits. Most courts give the obligor a dollar for dollar credit for the benefits a child receives. 
3. Aid To Families With Dependent Children rules provide that child support payments from a non-custodial parent must be assigned to the state as a condition of receiving benefits. However, to give the payor an incentive to pay, the first $50 per month of child support "passes through" to the child. This $50 pass was not allowed for Social Security benefits. pg. 507. This has been changed to allow no "passing through."

4. New Families - Spousal Support, Remarriage and Cohabitation. pg. 508.

_ Traditionally spousal support ended upon remarriage - but what about cohabitation?

Peterson v. Peterson &endash; (p. 508) Facts: Greg had to pay Janey sum of $1,000 per month for 7 years and then $500 per month for an additional 10 years unless during this last 10 y ear period Janey dies or remarries, at which time this portion of the alimony shall cease.
Janey remarried and asserts
That the language of the trial court's alimony award indicates by implication that Gregory's duty to pay alimony would not cease if Janey remarried during the initial seven yearsthe alimony award was an integral part of the property settlement segment of the divorce decree andextraordinary circumstances exist - Janey's new husband is unable to support her.
Court answers with:
#1 - the Voyles - exception applies only where there is an express statement that alimony is to survive notwithstanding the remarriage of the recipient spouse. Silence on the issue is not the same. Her argument collapses.
#2 - the alimony award was not a disguised property settlement.
#3 - This is not an extraordinary circumstance - wife having voluntary elected to marry another, who now must assume the responsibility for her support.
_ It is illogical and unreasonable that a spouse should receive support from a present spouse and a former spouse at the same time. The trial court was correct and did not abuse its discretion in terminating Janey's alimony.
_ In deciding whether something was property or alimony - the court used the totality of the circumstances test.
ALI Family Dissolution Principles provide that payments to a former spouse should terminate on the recipient's remarriage unless the court finds that termination would work a substantial injustice.
Bates v. Bates and Oregon Supreme Court case - said spousal support should be terminated when remarriage supplants the purposes behind the initial award.

In Re Marriage of Dwyer - pg. 513. Husband contends that since wife is cohabitating with an adult make, maintenance should be terminated as a matter of law. The court disagrees.majority of the jurisdictions that have addressed this issue have held that a former spouse's unmarried cohabitation is not, in and of itself, sufficient ground for suspending, reducing or terminating maintenance.rationale for adopting this approach is that unmarried cohabitants do not assume the reciprocal obligations of marriage, including the common law duty of support.the two are more like roommates - apart from an incidental reduction of her living expenses, her cohabitant does not contribute to her support.allowing cohabitation to be like remarriage undermines the term of remarriage - per a Kentucky case. Therefore wife needs continuing maintenance.
v. Combs &endash; (page 515) Kentucky - factors as to whether cohabitation should reduce support.benefit,of the parties,of the living arrangementsof the financial arrangementsof a continued relationship.

Notes on pp. 515-516:
Some states have allowed modification with cohabitation.Georgia the statute covers cohabitants of both genders. homosexual, etc.&endash; cohabitation with a person of the opposite sex who is not of member of the family.Rico &endash; wife lives in public concubinage or observes licentious behavior.pp. 516 for others.and Movita Brando (p. 516) - private agreement that alimony would terminate upon Movita's appearing to maintain a marital relationship with any person. Marlon did not want the male partner to derive the benefits of his support. This did not include one night stands.

. Oregon Statutes
ORS 25.287. (p. 13). Proceedings to modify orders to comply with formula; when proceeding may be initiated; issues considered. Substantial changes in circumstances.
ORS 107.135. (p. 37). Vacation or modification of decree. There must be a substantial change in circumstances. Factors to be considered. The court in relating to custody or parenting time, may consider repeated and unreasonable denial of or interference with parenting time to be a substantial change in circumstances.
ORS 107.136. Reinstatement of terminated spousal support.
ORS 107.407. (p. 44). Setting aside portion of decree for support of former spouse. after 10 years if spouse has not tried to get a job, etc. you can petition to terminate support.
ORS 107.412. Procedure applicable to ORS 107.407; matters considered; attorney fees. Factors to be considered.
ORS 107.415. Notice of change of status of minor child required; effect of failure to give notice. Notice when child leaves school, employed or married.
ORS 107.452. (p. 46). Reopening case if assets discovered after entry of judgement. covers intentional and unintentional hiding of assets.
B. NEW FAMILIES - CHILD SUPPORT PG. 518.

1. Generally
section considers how decisions by parents to remarry or assume financial responsibility for children from a new marriage should affect child support obligations.courts make determinations of child's need and whether the child lives w/parent is new child and who the biological parent is.

Ainsworth v. Ainsworth &endash; (p. 519) Facts - after the Ainsworth's divorced, the father paid weekly child support for their two children. He later remarried a woman with a son from a previous marriage. A motion was thereafter filed by the original wife seeking increased child support.
Rule - a court (in a jurisdiction that has set guidelines by which a child support amount is calculated) may find that an order is inequitable because of the parent's expenses in supporting other dependents. A parent's expenses include a general obligation of support for stepchildren.
_ The court found that the trial court may, find that calculating a support order based on the guidelines would be inequitable because of a parent's expenses in supporting other dependents.
_ Dissent - Priority is children and there living standard should not drop insofar as possible. Ds undertakings were voluntary - second family, home, and furniture.
_ In applying child support guidelines, the great majority of states provide that spousal support and child support actually paid pursuant to court order are deductible from the payor's income. However, a number of states like Vermont give courts discretion to deviate from the calculated amount because of new support duties.

. First family first approach and second family first approach (stepfamilies).
states adhere to the common law rule that stepparents have no duty to support their stepchildren based on their status alone. Statutes in a few states impose a support duty on stepparents living with their stepchildren for the duration of the marriage.a state that does not impose a legal duty of support on stepparents, should the fact that a stepparent does support a stepchild be a ground for deviating from the amount calculated under the guidelines formula?'s compensation and unemployment compensation statutes generally provide that stepchildren who are dependent on a stepparent are covered by state workers' compensation laws.child support guidelines provide that the income of a parent's new spouse is not income for purposes of calculating the basic obligation.some community property states, courts have held that half of the earnings of the new spouse, which are community property, belong to the obligated parent and are to that extent considered in calculating the child support obligation.in other community property states as well as common law property states have interpreted statutes providing that spouses are not liable for each other's premarital debts to mean that a non-custodial stepparent's income cannot be considered in calculating his or her spouse's child support obligation.though a stepparent's income cannot be considered in calculating the basic support obligation, many cases decided before and after the advent of guidelines have held that courts may considered that extent to which the new spouse's income increases the parent's ability to pay and so may justify and increase in an award. Similarly, courts have held that a custodial parent's remarriage can reduce the needs of the children, leading to reduced support from the non-custodial parent. pg. 528.
Oregon &endash; stepparents have obligation to support stepchildren who are living with them for the duration of the marriage.
In Oregon &endash; new children are put in the formula the same as prior children, then subtract the amount owed from payor's gross income. See OAR 137-50-320 &endash; what constitutes joint and non-joint children (it doesn't include stepchildren, only natural or adopted children). See also OAR 137-50-400 &endash; non-joint children &endash; use non-joint child as a deduction, use only his income and # of non-joint children to figure out the deduction. Thus, prior child support order is not dispositive, even if his amount goes up or down.

3. A Comparison: Child Support Duties When a Child Receives Aid to Families with Dependent Children (AFDC). (p. 530)

_ As seen spousal support duties affect people's eligibility for public entitlements for things such as Medicaid. Child support duties can also affect public entitlements.

Bowen v. Gilliard &endash; (Facts - Betty Mae Gilliard was receiving public assistance under the Federal Aid to Families with Dependent Children program. When the state learned that she was receiving child support payments from the father of one of her children, it reduced Gilliard's monthly public assistance to account for this amount. Issue - does a statutory requirement that the income of all parents, brothers, and sisters living in the same house be taken into account in determining a family's eligibility for public assistance violate the due process and taking clauses of the fifth amendment? Rule - Under the fifth amendment, the federal courts have no power to influence the views of Congress as to what constitutes wise economic or social policy. * note the first $50 of child support collected by the State must be remitted to the family and not counted as income for the purpose of determining its benefit level.
NOTES (p. 539-545): Federal Welfare Reform (p. 5 of 2nd supp). &endash; Gave the states discretion and got rid of the $50 pass-through. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 eliminates AFDC and replaces it with Temporary Assistance to Needy Families - this allows the states more discretion and gets rid of the rule challenged in Bowen. It also gets rid of stepparent and grandparent deeming rules.
Dandridge v. Williams , pg. 539, established that minimum rational basis scrutiny is ordinarily used to assess due process and equal protection challenges to social welfare legislation, and the majority applied that test in Bowen.
Caretaker option existed before Bowen, pg. 540. It excluded children receiving child support, etc. for the AFDC calculation.1981, the Social Security Act was amended to require that a custodial stepparent's income be counted in determining a stepchild's eligibility for AFDC, regardless of whether the stepparents otherwise have a legal duty to support their stepchildren. This is because we don't want society paying for all these people.deeming, (p. 541). In most states grandparents have no legal duty to support their grandchildren - unless the mother is under 18 years of age.Child Support (p. 543) - What is the Economic Unit? - is parental status more important than people sharing a household. - Cassetty approach - making families equal. pg. 544.

. Oregon Statutes
ORS 107.135. (p. 37) - vacation or modification of decree - see above.
ORS 25. 287. also see above section.
ORS 109.053. (p. 60) Responsibility of Stepparent for expenses of stepchild. support duty until dissolution of marriage for stepchild.
C. ENFORCEMENT OF SUPPORT ORDERS (P. 545)

1. Introduction
The child support enforcement program: policy and practice. even though people are being awarded child support, they are often not being paid child support - this is an enforcement problem.separation agreement stipulates one spouse should pay creditors, that agreement is not binding on creditors b/c they are not parties to the proceedings.you should reform debt so that you change the parties names (who is liable)

2. Private Enforcement Mechanisms - liens, trusts and insurance (p. 546)

Now lawyers can set up private enforcement solutions
Transaction / setting up that allows one lump sum payment or lump sum plus smaller payments. Where periodic payments (Oregon) if there's enough $ you can set up a trust.. Trust can be set up:back to obligor
trust designed to end / de depleted when payments are scheduled to end.conveyance statute requires conveyance of property to trust or to other spouse.
. Obligor posts bond to ensure supportguarantees full amountlaw requires ability to use bonds in child support
. Provide for life insurance payments by other spouse.
ORS 107.810 &endash; 830 &endash; court can order life insurance set up.
ORS 107.105(f) &endash; if court awards spousal support instead of property the court shall order life insurance
_ Note: if obligor puts life insurance on their own life, the beneficiary doesn't know if the payments are being made. So, ct. should order insurance co. to notify beneficiary of any change in beneficiary, or lack of payment. Note, if no ct. order, then ins. Co. is under no obligation to notify beneficiary of anything b/c their K is with grantor.

UMDA ¤ 307(b) provides that courts can set aside money in a trust for children.states to protect against death order the obligor to maintain life insurance for the benefit of the obligee in a sufficient amount to provide the ordered support.in Oregon 107.105(f) - if a spouse has been awarded spousal support in lieu of a share of property, the court shall order the obligor to provide for and maintain life insurance in an amount commensurate with the obligation and designating the obligee as beneficiary for the duration of the obligation.
Contempt - pg. 547. Before a person can be held in contempt for nonsupport, a court must have previously entered a support order, and the person must have refused to comply while having the ability to obey. They can be jailed for contempt.

3. Judicial Enforcement (Jail, withholding wages, contempt) (see pp. 547-565)

a. Generally

If that person doesn't comply with any type of order:
Reduce to final judgment if not already (prop. Div. And child support orders are final)lienorder to seize property and sell to satisfy judgment (note only works in your state &endash; you have to got to other state & file and seize in another state)
: Arrearages &endash; not wiped out, and not retroactively wiped out. They will have judgement against them and if they get a job then garnisheed of wages takes place.

b. Specifics of enforcing orders (Ch. 25 of Oregon statutes):

Throwing in jail
convince DA to bring criminal prosecution for crime on non-support. (problem- trying to convince DA is hard.&endash; easier way to get into jail.. Civil &endash; remedial (brought by civil lawyers) You get out of jail as soon as you comply with the order
ii. Criminal &endash; punitive (brought by DA and punishing for failure to comply with court order. You get out after fixed period of time.. Person has to know about the order & has ability to comply. If you can pay, but not all, then you should modify downward.

Hicks Ex Rel Feiock v. Feiock - pg. 548. Facts - D was ordered to make child support payments. he failed to do so. An order to show case re: contempt hearing was held. The trial court interpreted the applicable law to require D to prove he did not have the ability to pay. He was unable to do this for five of the nine months at issue, and was held in contempt for these months.
He was sentenced to jail and fined, although the sentence was suspended on the condition he pay the arrearages. The court of appeals vacated the contempt citation, ruling that since the proceeding had been labeled "quasi-criminal", due process under the Fifth Amendment required that the element of inability to pay be the prosecutor's burden, not Ds burden.
The Supreme Court granted certiorari.
Holding - Whether a state contempt proceeding implicates federal due process considerations does not depend on the label given the proceeding.contempt proceeding is civil in nature if its purpose is remedial or to validate the court's authority.is criminal if it is punitive in nature.contempt proceedings which are criminal in nature implicate the Constitution's various procedural safeguards afforded the defendant.how a state chooses to label a proceeding is a factor in making this differentiation, it is not conclusive. Rather, the type of sanction imposed is the determinative factor.
If the sanction is of a definite type and duration, it is criminal.
If it is framed in such a manner as to permit the contemptor to expunge the sanction by complying with the original order the contempt is civil.: On remand this was found to be criminal contempt.
v. Batchlor - pg. 554 - indigent person must be afforded the right to counsel whether this is a civil or criminal case.
The Federal Child Support Recovery Act of 1992, makes if a federal crime willfully to fail to pay past due child support for a child who lives in another states.

. Defenses to nonpayment of support

a. Retroactive Modification

Many people do not seek downward modifications of support orders as soon as they have grounds. Instead, they stop paying and wait.
However, federal law now requires states to provide that overdue child support is a judgment by operation of law.purpose of the requirement and the effect of the change is to prevent courts from retroactively modifying child support obligations.unintended adverse consequence of this change is that support duties become subject to a state's statute of limitations as they become due, and most states allow enforcement of money judgments for only five to 10 years.
. Ability to pay your debt of child support, (p. 556)
It is ok to put people in jail who have the ability to pay, but aren't paying - the debtors' prison was to prevent those who could not pay from remaining in jail for the rest of their lives. (constitutional provision).
Most courts are very tough on people who violate ct. orders
a. If ct. thinks they can pay &endash; lookout. If ct. thinks they can get better job &endash; lookout. If ct. thinks they can work at a job, or better job, then court institutes "SEEK WORK" orders which require 20 job contacts a week.
Arrearages &endash; not wiped out, and not retroactively wiped out. They will have judgement against them and if they get a job then garnisheed of wages takes place.all jurisdictions &endash; visitations can't be denied if the other spouse is not paying child support (see p. 558)

In Re Marriage Of Dennis - Facts - Dennis, who worked for low wages as a car repairman, was ordered, as part of his divorce settlement to apply to at least ten new places each month in a good faith effort to secure other employment.
Rule - A court may order a parent to seek other employment in an attempt to ensure that the parent is not complacently staying in a low income job. "Seek work" order. This is to figure of person's economic worth. Concurrence - A seek work order cannot be construed as requiring the parent to quit a present occupation and get a different job.
. Linking Visitation and Child Support
In a few states statutes expressly condition child support duties on compliance with visitation rights. However in most jurisdictions visitation and child support are, in principle, independent in the sense that a custodial parent's failure to allow the other parent to visit does not excuse the non-custodian from paying child support. Thus, visitations can't be denied if the other spouse isn't paying support.sometimes use their equitable powers to excuse nonpayment of child support when the custodial parent has interfered with visitation on unclean hands and related grounds.Damico v. Damico (intentional concealment) which says that active concealment of a child is a defense to nonpayment. If the parent doesn't know where the child is, how can he make payments.may &endash; suspend child support if child stays with grantor (non-custodial parent) for a significant amount of time with custodial parent's consent.
. In-Kind Contributions (as an offset against child support)
In most jurisdictions the formal rule is that an obligor cannot satisfy an order to pay a specific sum in support by purchasing goods or services instead, and the obligors are not entitled to offset the costs of such purchases against the amount they owe.
There are however exceptions - see ORS 107.135(6) which says the court may allow a credit against child supports arrearages for periods of time, excluding reasonable visitation unless otherwise provided by order or decree, during which the obligated parent has physical custody of the child with the knowledge and consent of the custodial parent.most jurisdictions &endash; self-help offset (in kind contributions) doesn't exist (p. 559). You must pay $ to custodial parent, you can't claim a credit b/c you help out by buying things when you have temp. custody. But court may suspend child support if child stays w/grantor (non-custodial parent) for a significant amount of time w/custodial parent's consent.

5. The State-Federal Child Support Enforcement Program pg. 560 -
This act requires each state to create an agency to collect support - this is under TITLE IV-D of the Social Security Act. Financial incentives are provided for this as are penalties for not complying.state IV-D agency must provide certain services, including establishment of support duties, establishment of paternity, and location of absent parents.cannot charge custodial parents receiving AFDC benefits for these services.

a. Expedited Processes
_ For the sake of expediting the collection of child support, states must create an administrative or quasi-judicial (this is an arm of the judicial branch rather than the executive branch) process for obtaining and enforcing orders in IV-D cases.

b. Enforcement by Wage Withholding.
States must require wage withholding in all child support cases.basic limit is 50 percent of disposable earnings for a noncustodial parent who is not supporting a second family.enforced by state (even if only in place for one month)tutes &endash; require explanation of notice of what wage withholding means (p. 18 of supp ORS 25.370)order is issued &endash; layer is one who ensures language is good and complete and also responsible for serving on the employer.in non-welfare cases, but not in welfare cases.
. Other Enforcement Devices &endash;
1. Judicial authority to impose liens against real and personal property for amounts of overdue support,
. Judicial authority to require obligors to post a bond or give some other guarantee to secure payment,
. Allowing failure to pay child support to be reported to consumer credit bureaus and
. Withholding state tax refunds payable to a parent of a child receiving child support services, if the parent is delinquent in making payments.
. In addition the IRS must withhold Federal tax refunds.
. Child Support Assurance (assuring child support)?

_ Children are still poor and still not getting what they need:
_ Now &endash; enforcement also extends to loss of professional license (such as plumber, lawyer, etc)
_ Even extends to loss of license.

Two researchers in Wisconsin came up with a proposal with 3 components &endash;
child support would be calculated as a percentage of the non-custodial parent's income. This kind of guideline permits automatic indexing of child support awards.support would routinely be withheld from the obligor's pay, as income tax is now withheld andstate would assure that child's caretaker receive a minimum amount for support of the child.: both 1 and 2 have been implemented in various states - but #3 has not, not even in Wisconsin.

5. Oregon Statutes

Enforcement Generally
ORS 107.105(1)(i) - Regarding judgments and who should pay.
ORS 107.105(3) - pg. 34. Transfer of property - not taxable. what is taxable??
ORS 107.105(6). For any additional property forgotten about - petition to divide must be within two yrs.
ORS 107.126. Decrees and orders as liens; duration. pg. 37. cannot have a lien for more than 10 years. - it can be renewed though. Child support judgment lien lasts up to 25 years.
ORS 25.700. pg. 20. Expiration of judgment; renewal of judgment; judgment creates continuing personal obligation. Renewal of judgments.

Trusts -
ORS 107.105(1)(g). pg. 33. The creation of trusts. For children or a party. A party can petition to show change in circumstances.

Insurance &endash;
ORS 107.092. pg. 28. Notice that spouse may continue health insurance coverage; content; liability of clerk.
ORS 107.105(1)(d)(L). In considering support the court can consider premiums paid for life insurance on the life of a party ordered to pay support.
ORS 107.105(1)(f). a court can order an obligor to maintain life insurance.
ORS 107.810. Policy. pg. 54. Oregon encourages life insurance.
ORS 107.820. Support order as insurable interest; order to obtain, renew or continue insurance; right of beneficiary to purchase insurance or pay premiums. Life Insurance.
ORS 107.830. Physical examination may be ordered; responsibility for premiums. why is the person/obligee sometimes liable for the premiums??? payment to bank account or through DHR (department of human resources).

Support Enforcement.
ORS 25.010 pg. 2. Definitions for support enforcement laws. disposable income - means that part of the income of an individual remaining after the deduction from the income of any amounts required to be withheld by law except laws enforcing spousal or child support and any amounts withheld to pay medical or dental insurance premiums.
ORS 25.020. When support payment to be made to DHR duties of department; credit for payments not made to department.
ORS 25.030. pg. 4. When payment payable to clerk of court, bank account or obligee; discontinuance of payment to clerk. This is instead of sending it to the DHR.
ORS 25.040. When support payments payable to clerk of court.
ORS 25.090. Compelling payment to clerk of court or department for transmission to beneficiary; transmittal; notice.
ORS 25.130. Election of alternative support payment method; termination of election. parties can agree on sending money into an account without going through the department of justice in certain circumstances.
ORS 25.160. Referral of support cases by district attorney to department; duration of collection services.
ORS 25.320. Payment of support through Department of Human Resources. pg. 16.
ORS 25.340. Establishing of income withholding as method of paying support. - DHR or DOJ which agency is in control here???
Income Withholding
ORS 25.311. pg. 14. Payment of support by income withholding; initiation of income withholding.
ORS 25.313. Remedy additional to other remedies.
ORS 25.314. Service of order on withholder; contents.
ORS 25.315. Advance notice of initiation of withholding action; contents of notice. It appears that an agency can also bring this action.
ORS 25.316. Contesting order to withhold; basis. Mistake of fact is the only defense.
ORS 25.317. Discontinuation of withholding; basis.
ORS 25.318. Amendment of support order not required for withholding. Disposable income is subject to an order to withhold.
ORS 25.351. Amount to be withheld; processing fee. Can't exceed 50% of the persons disposable income.
ORS 25.363. pg. 18. Liability of withholder for withholding and for failing to withhold; unlawful employment practice.
ORS 25.370. Statement on withholding in support order.

Attaching Obligor's Property
ORS 25.210. Use of obligor's property for delinquent support payments.
ORS 25.670. Judgment lien on personal property. pg. 20.

Court-Ordered Security
ORS 25.230. Court authorized to require security for support payments. - like bonds, etc.

Tax Intercept
ORS 25.610. Procedure to collect support orders from tax refunds; voluntary withholding. you can collect past due from income tax refunds.
ORS 25.620. Procedures to collect past due support from tax refunds. pg. 19.

Credit Agency Reporting &endash;
ORS 25.650. Information on overdue support to consumer reporting agencies.

Support Enforcement Services
- ORS 25.080. Agency primarily responsible for support enforcement services. Support Enforcement Division. The DHR has the support rights - that is the difference.

Suspension Of Occupational Licenses
- ORS 25.750. pg. 21. Suspension of licenses, certificates, permits and registrations; when authorized; rulemaking. The can all be suspended.

Administrative Process For Determining And Enforcing Support.
ORS 25.170. Proceedings to require delinquent obligor to appear and make financial disclosure; order for appearance; contents; service; rights of obligee. pg. 7.
ORS 25.180. Examination of obligor; conduct and scope of examination; record. exam in reference to income and property.
ORS 25.190. Continuance of proceedings; service of notice to obligor and obligee.
ORS 25.200. Arrest of obligor for failure to appear.
ORS 416.405. Policy. pg. 94. don't want public assistance to have to pay for children - so look to parents first.
ORS 416.415. Notice and finding of responsibility; contents; hearing; order. order for support enforcement.
ORS 416.425. Modification of financial responsibility order; service. pg. 96. The only support payments that may be modified are the monthly future support payments. And there must be a substantial change of circumstances.
ORS 416.427. Hearings procedure; parties; enforcement of order; appeal of order.
ORS 416.429. Notice of intent to enforce order; content; other remedies.
ORS 416.440. Filing and docketing of financial responsibility order; order effective as circuit court decree.

VI. CHILD CUSTODY (pp. 587-689)

A. SOLE CUSTODY

1. Introduction
law doctrine assigned sole custody to fathers of their legitimate children. He could also determine custody after death.Grossberg, pg. 587. Children were like property - assets in the estates. The father had the authority. Traditional male authority over the family remained a fundamental tenet of family law. But a growing concern with child nurture and the acceptance of women as more legally distinct individuals, ones with a special capacity for moral and religious leadership and for child rearing, undermined the primacy of paternal custody rights. The best interests of the child become what was relevant.
2. Standards for Custody Determinations (Best Interest Doctrine) (p. 589)\
introduction to the best interests standard (around middle of century &endash; 1950's) - move from paternal patriarchy to judicial patriarchy - best interests doctrine gave the judiciary this power.
rules -requires mechanical application of law, while;
standards - proceeds by individualized application of generally stated social policies. The current standard is: The best interest standard is a judicial yardstick used to measure all claims for children.

BEST INTEREST INCLUDES:
Emotional & psychological well-being
relationship w/parental figure (caretaker or whomever the child has bonded with.term &endash; biological ties are just as important.
Temporal Stability (all agree that long term stability is best)disorder &endash; when child loses ability to form relationships with others and they withdraw.
Who has the most $$ - better able to take care the best.
Stability &endash; (regular schedule)
Child's choice &endash; NOT in child's best interest b/c it subjects them to chaos.

ORS &endash; 107.137 (p. 39 supp.) &endash; list of factors the courts are looking at in order to determine who is best able to raise a well-adjusted child who feels love (discretionary application).
Note:
Judge may or may not be good at talking to children.. can poss. appointed lawyer/guardian ad litem to represent the best interests of the child. Harris &endash; believes a ct. appointed lawyer is good b/c they can act as a shuttle diplomat.
Also &endash; (Harris) believes that settlements are good instead of court imposing its will.
Temporary orders &endash; good lest the arrangement explodes. See ORS 107.138 (temp. orders)
Gorilla Rule &endash; where does the gorilla sleep &endash; anywhere they want &endash; kids become Gorillas at 14.

Painter v. Bannister - Facts - Mary Painter's mother was from the rural midwest. She had gone to college, as had her father, and had been raised in a very stable, secure environment. She married Painter the boy's father. Dad was a hippie, and when wife was killed in car accident, dad left boy with grandparents in Iowa. Boy had adjusted well after some problems earlier. Dad wanted Mark back, grandparents refused. P has since remarried, and his new wife appears to be a leveling influence who will be a loving mother to Mark. Based on Dr. Hawk (who said it would be harmful to Mark if he was returned to father b/c Mark is attached to the grandparents and it would be like losing two parents. (Dad should have hired his own expert to contest this).
Rule - A child of 7 years needs stability and security, which he had found in his stay with his grandparents. This is despite the legal presumption which favors parent between parent and non-parent.
Factors considered were
1. The presumption of parental preference,mother named her parents as guardians andage of the Bannisters.: also the emphasis on the father figure vs. the biological father. (p. 593).
Anna Freud, Painter v. Bannister. They should have based their decision on psychoanalytic reasoning. You look at the child and the warring parties - probing interviews. Legal v. Psychoanalytic Aspects - unlike a court you do not have to pronounce a judgment. You merely formulate advice. Talk about the psychological father on pg. 597.later chose to return to his father.

Joan Wexler, Post-adjustment of children and their parents.year after divorce is the worst - negative child-parent relationships with the worst between mothers and sons.study found that the children's post-divorce social adjustment greatly depended upon the custodial parent's ability to achieve and maintain his or her own emotional and social adjustment.only formal parties in a divorce are the parents - but courts are beginning to recognize a role for children - not as a formal party, but they can obtain independent counsel.

Stephen Wizner - being a lawyer for a child to young to be a client. The Role of Lawyers - pg. 603.
3. The maternal preference (p. 604)
is called an intermediate rule and it tries to be the middle ground between rules and standards.
Michael Grossberg, Governing the Hearth, pg. 604.
Tender years rule. - it decreed that infants, children below puberty and youngsters afflicted with serious ailments should be placed in a mother's care unless she was proven unworthy of responsibility.
Reality &endash; children live with mothers more often than not.

What's objectionable w/maternal preference as a starting point?
May not be in best interest of child.discrimination (intermediate scrutiny required &endash; substantial state interest &endash; thus fairly high hurdle)
But &endash; may reflect reality and stop some litigation. Oregon &endash; NO PREFERENCE.

Pusey v. Pusey, (p. 605) Parties married 12 years and had 2 kids. P cross-appeals from the portion of the divorce decree awarding custody of the older son of the marriage to D and requests that both children be awarded to her. Jorgenson the court said all other things being equal you should look to the maternal preference. But all things are usually not equal. Plus the Equal Protection Clause doesn't allow gender to be the consideration if all things were equal.: --- Even ignoring the constitutional infirmities of the maternal preference, the rule lacks validity because it is unnecessary and perpetuates outdated stereotypes.factors should be considered in looking at the child's best interests - this court says that you can look to who was the primary caretaker, the stability of the environment, etc. We find no abuse of discretion in the custody award. The son had a preference for staying with his dad.
Basically - The time has come to discontinue our support, even in dictum, for the gender-based preferences in child custody cases.

4. The primary caretaker (p. 609).

Primary Caretaker &endash; is a legal presumption which works against the person who is NOT the primary caretaker. The burden - is on that party to show they are better parent. Can be softer/gentler &endash; burden is less.
Buchard v. Garay - this is a custody battle for a son. The mom is appealing an award of custody to the father. Mom became pregnant and dad refused to help care for the child - and denied paternity. Mom brought a support suit and won after son was 2. Dad then wanted visitation rights and mom refused. He then filed for full custody. Applying the best interest test, the lower court awarded custody to dad b/c 1) he was financially better off, 2) he was remarried and 3) he would allow the mom to visit.
This court said that comparative income and economic advantage is not a permissible basis for a custody award. This is what support orders are for.reverses the decision and remands - they emphasize stability, emotional bonds, disruption and continuity and say that you cannot assume that the care of a working parent is inferior. While best interests are important - in order to modify there must be a change in circumstances.
Concurrence - Stability, continuity and a loving relationship are the most important criteria for determining the best interests of the child.

Garska v. McCoy, pg. 615 - list of relevant factors in identifying the primary caretaker &endash;
preparing mealsand dressingand cleaning clothescare, etc.
:
Primary caretaker &endash; is facially neutral (in regard to gender) but in reality a preference for women.
Disparate impact &endash; purpose or intent to discriminate must be shown.
All jurisdictions &endash; non-married couples &endash; if child is born &endash; custody automatically given to mother, but once paternity is established, then you have custody hearing.in Burchard &endash; mother wanted child support, father denied paternity, paternity was established and child support ordered, he wanted visitation rights, she refused and he sued for custody. NOTE: if he was seeking modification he would have to show a change in circumstances.
Analogy: divorce where mother (homemaker) is required to get a job to avoid spousal support.

The Wisdom of Solomon - identify the truth mother from the pretender b/c the mother was willing to give him up so that he could live. She withdrew b/c she realized that winning was not all.
5. Domestic Violence as a factor in Custody Cases &endash;
Mat. (2nd Supp. pg. 6). It is a factor in custody cases.states have presumptions against putting the child with a person who has committed domestic violence.a presumption that if you are involved in domestic violence you are unfit, was argued by one judge to be unconstitutional - following Stanley v. Illinois.Violence includes physical or sexual force or harm, or the infliction of fear or imminent physical harm, bodily injury, or sexual activity compelled by physical force or assault.Federal Divorce Act - which prohibits taking account of a person's past conduct unless that conduct is relevant to the ability of that person to act as a parent of a child has been interpreted to exclude evidence of such marital misconduct as adultery but apparently has been read to allow evidence of spousal abuse.spousal abuse has led to denials of access (visitation) or the imposition of conditions such as supervision on access.

. Oregon Statutes
ORS 107.105(a) and (b). pg. 31 Custody and Visitation.
ORS 107.137. Factors considered in determining custody of minor child. pg. 39. best interests, no preference for mother or father. Only consider conduct, lifestyle or marital status of the parties if these factors would cause emotional harm to the child.
ORS 107.425. pg. 45. Investigation of parties in domestic relations suit involving children; physical, psychological, psychiatric or mental health examination; counsel for children.
. RELIGION, SEXUAL BEHAVIOR, AND RACE
meanings of terms such as "fitness" or "best interests" change with time and place.
At one time the parents' religion may be a central concern.other times the emphasis may be on sexual behavior, physical characteristics and qualifications, or general commitments to mainstream values.

1. Religion

Shelley v. Westbrooke, (p. 619). The father avowed himself as an atheist - this is immoral and the judge "cannot therefore, think that I should be justified in delivering over these children for their education exclusively, to what is called the care to which Mr. S wishes it to be entrusted." The order restrained the father from having the children.
In Re Marriage of Hadeen (p. 620) (1980) - Husband got 4 kids and wife got 1 kid. This appeal presents the issues of whether religious acts may constitute a determinative factor in an award of custody, and, if so, what test must be used to protect the interests of children and the religious freedom of parents. The trial court must consider all relevant factors, the key here is whether religion was considered in violation of the 1st amendment. Wisconsin v. Yoder was discussed - parents have the right to direct the religious upbringing of their children, but this can be subject to limitation if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. In Yoder there was no harm to the children so they were not compelled to attend school.
Stone found that the court could not find that the mother was unfit to have custody of the children because of her religious beliefs. (Jehovah's Witnesses).Quiner, the mother belonged to the Plymouth Brethren Church and embraced its doctrine of separation which maintains that church members shall have no fellowship or association with non-church members. That court awarded custody of the child to the husband on the basis of the court's finding that the child's mental welfare and opportunities for intellectual character and personality growth would be furthered best with the father. On appeal the court said this was unconstitutional because based on the mother's religious beliefs. We glean from these cases that religious decisions and acts may be considered in a custody decision only to the extent that those decisions or acts will jeopardize the temporal mental health or physical safety of the child. The question remains whether jeopardy to a child must be one of actual present impairment of the child's physical and or mental wellbeing, or a reasonable and substantial likelihood of impairment. We hold that the requirement of a reasonable and substantial likelihood of immediate or future impairment best accommodates the general welfare of the child and the free exercise of religion by the parents. There was no evidence that Mrs. Hadeen neglected her children and therefore the case was reversed and remanded.

Osier v. Osier, (p. 625) - blood transfusion - mom would not consent b/c of her religious beliefs so gave custody to father. The Maine Supreme Court reversed using balancing test &endash; Q: of religious beliefs v, impact on health and safety of child.
2. Co-habitation and sexual orientation
Jarrett v. Jarrett &endash; (p. 627) (1979). Facts - wife was awarded custody of her three children subject to the father's right to reasonable visitation. Seven months later, the father petitioned for a change of custody. Specifically, the wife's new boyfriend had moved in with her and her children.
Rule - if a court finds the cohabitation of a parent with a person of the opposite sex to endanger the physical, mental, moral, or emotional health of the children involved, a change of custody is warranted. Dissent - the courts should not impose the personal preferences and standards of the judiciary in the decision of this case. - She has not been declared to be unfit. There is no evidence of harm to the children.
v. Stacy (p. 632)&endash; (you can't deny custody b/c of adultery - look at the primary caretaker.can accord various degrees of significance to non-marital cohabitation, short of treating it as dispositive. "Acts of sexual misconduct may not be considered as evidence going to the fitness of the mother unless her conduct is so aggravated, given contemporary moral standards, that reasonable me would find that her immorality warranted a finding of unfitness."
M.A.B. v. R.B. - Facts &endash; (p. 633). MAB was granted custody of her three children following her separation from RB. Later, when RB petitioned for a transfer of custody, MAB challenged the petition based largely on the fact RB was a homosexual.
Rule - while one factor that might be considered, the homosexuality of a parent is not determinative in a child custody dispute. This court cites Bezio where an expert testified that "there is no evidence at all that sexual preference of adults in the home has any detrimental impact on children...many other issues influence child rearing. Sexual preference per se is typically not one of them." It is in the son's best interest to live with his father. : father was stern and disciplined the child, mother did not. Child didn't want to be with father b/c of the discipline, not because of the sexual orientation (it was a sham).
Decisions that suggest that homosexuality is important where the conduct is obvious to a child.
Roe v. Roe, (p. 639) The father's unfitness is manifested by his willingness to impose this burden upon her in exchange for his own gratification - he would not stop sharing a bed, etc. "The father's continuous exposure of the child to his immoral and illicit relationship renders him an unfit and improper custodian as a matter of law."
Bottoms v. Bottoms (p. 640) - the Virginia Supreme Court found that while a homosexual parent is not per se unfit to have custody. However, the conduct inherent in lesbianism is punishable as a felony and is thus relevant in determining custody. This was between the mom and maternal grandmother.
3. Race
v. Sidoti &endash; (p. 640). (1984) Facts - Palmore was awarded custody of her children following her divorce form Sidoti. When she later married a black man, her husband brought petition for a transfer of custody, which he was later awarded in a Florida court.
Rule - Determining the custody of children based on an interracial remarriage by a parent is a violation of the equal protection clause of the fourteenth amendment. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.

C. JOINT CUSTODY (p. 643)

Sidenote - empirical - that which is based on experience, experiment or observation.relatively recently, courts generally agreed that all children of a family should be placed with a single custodial parent.custody arrangements were disfavored or simply rejected on a number of grounds, including the importance of a single parent with primary responsibility to providing consistency in discipline and moral education.legal custody also seemed to threaten a continuation of the spousal conflict leading to divorce: a conflict that would now directly involve the children.attitudes about joint custody are changing because it allows both parents to continue their relationship with the child.
Joint legal custody &endash; both parents maintain ability to make decisions regarding child's life (like what school they attend, religion, etc). Without legal custody &endash; one parent may not be able to access records relating to the child. But &endash; ORS 107.154 &endash; exception to rule above b/c non-custodial parent has rights to get the information.
Joint physical custody &endash; both parents share/divide custody (child lives in two places) but only one parent is the decisionmaker (non-decision making parent can make minor decisions).
School &endash; usually prevents moves during the school year.
Oregon &endash; court cannot order joint custody over one parent's objections.the order is made, if one party no longer wants joint custody they can modify after hearing.Custody &endash; requires that both parents can work together to make decisions, communicate problems, and talk about discipline.
Abuse &endash; if one spouse is battered, then joint custody (where parents will have contact) will require supervised pick-ups. Most courts don't' assume (unless there is evidence of child abuse) that an abusive spouse (towards other spouse) id denied joint custody, or requires supervised visitation.

Taylor v. Taylor, (p. 645). There are two children in this proceeding. The parties had an agreement which the court recognized allowing for pendente lite (pending the lawsuit, during litigation - contingent upon the outcome of the litigation) joint custody of the children. The children were to reside with dad in the family home and the visitation schedule was incorporated into the order.
The issues here are 1) whether the trial judge in Maryland has the authority to grant joint custody; and 2) whether, if the trial judge did have the authority to grant such an award, he abused his discretion under the facts of this case.
Legal Custody - carries with it the right and obligation to make long range decisions involving education, religious training, etc.
Joint legal custody means that both parents have an equal voice in making those decisions, and neither parents rights are superior to the other.
physical custody means the right and obligation to provide a home for the child and to make the day to day decisions required during the time the child is actually with the parent having such custody.
Joint physical custody is in reality shared or divided custody. Shared physical custody need not be on a 50/50 basis and in fact most commonly will involve custody by one parent during the school year and the other during the summer vacation, or division between weekdays and weekends, etc.- with respect to physical custody, there is no difference between the rights and obligations of a parent having temporary custody of a child pursuant to an order of shared physical custody, and one having temporary custody pursuant to an award of visitation., a determination to grant legal custody to one parent and to allocate physical custody between the parents may be accomplished either by granting sole custody to one parent and specified rights of visitation to the other, or by granting legal custody to one parent and specified periods of physical custody to each parent. In either instance the effect will be the same.principal criticism of joint custody is that it creates confusion and instability for children at the very time they need a sense of certainty and finality in their lives.following factors are important in considering joint custodyof the parents to communicate and to reach shared decisions affecting the child's welfare, pg. 648.of parents to share custody.of child.status of parents - these are just a few factors to be considered.
Final holding - we think it likely the trial judge intended to grant joint physical custody, but we would have to speculate concerning his intent as to legal custody. Any uncertainty should be resolved by the trial court and therefore the case is remanded.

Elebash v. Elebash, (p. 652). The trial court declined to follow a marital settlement agreement between the parties relating to the child custody - with joint custody. The final judgment gave the children to the mom. The mom would have the ultimate responsibility. This was in the best interests of the child. The shared parental responsibility statute does not mandate that the physical residence of the minor children be rotated between parents and such rotation is presumptively not in the best interest of children.
In California (p. 655) 3/4 of all awards incorporated joint legal custody. With joint custody, there is not always dual residency.
The desirability of joint custody is framed largely in terms of the best interests of children after divorce. Such a focus indulges two assumptions, often never made explicit. One is that we can indeed determine which of various custodial arrangements will, generally and in specific cases, advance the interests of those children. The second is that the best interest of the child is the only important consideration in custodial orders.

Martha Fineman, (p. 656). The helping professions have little hesitation in resorting to law for the implementation of their social policies - joint custody. They argue that there are no differences between men and women. This perspective denied and obscured recognition of anything special between mothers and children, innately or in fact. Because of the domination of the social workers' rhetoric, which stressed shared parenting, custodial mothers' concerns were excluded. Thus reform is occurring with the exception, rather than the norm. In most marriages, however, one parent, normally the mother, assumes day to day primary care. An unrealistic and idealized vision of shared parenting independent of the relationship between parents is now imposed on couples after divorce.

Lee Teitelbaum, (p. 658). Joint custody may lead to the loss of bargaining position for women. The threat of joint custody may also be utilized to counter petitions for upward modification of child support even after dissolution.

Lombardo v. Lombardo, (p. 659).were awarded joint custody of their 3 children.had physical custody and P had visitation.parties share decision-making authority with respect to important decisions affect the welfare of the children.disagree over whether to enroll one child in a gifted program.wants son in program.trial court determined that the parent who is the primary physical custodian should make the decision. D had primary physical custody of the children, and P has physical custody of the children for not less than 128 days each year.the child resides with a parent, that parent decides all routine matters concerning the child. - where the parents as joint custodians cannot agree on important matters such as education, it is the court's duty to determine the issue in the best interests of the child.

Brzozowski, (p. 661) - there was joint custody, but the mother was the physical custodian and both parents had an agreement to cooperate and share medical costs and make sure to have the consent of the other before any surgeries. The daughter had an accident and the mother let her have elective surgery on her nose against the fathers wishes - the court did not want to interfere with the decision making power of the residential parent.

D. VISITATION AND MODIFICATION

1. VISITATION AND ITS ENFORCEMENT

Visitation orders come in two forms:
sole custody to A, B gets "reasonable" visitation. Reasonable visitation gives non-custodial parent nothing (they feel excluded and often just remove themselves from the child's life).custody to A, B get to visit _________ (spelled out specifically &endash; like a plan)
for modification:
Substantial change in circumstances.&endash; harder to modify, but most jurisdictions allow with "substantial change in circumstances" test.

Morgan v. Foretich - Facts - Morgan was awarded custody of her daughter, and Foretich was given liberal visitation. When Forteich was awarded a two-week summer visitation with his daughter, Morgan refused to comply with this order, trial court found her guilty of civil contempt and to imprisonment.
Rule - subject to state statute, the failure to comply with a court order on child custody or visitation may result in a myriad of punishments, including imprisonment. She said father was sexually abusing the child. There was no evidence of abuse so he was still given visitation.of visitation is an extreme remedy, rarely approved. Larroquette - visitation continued though no overnight stays because of open concubinage.
JLP(H) v. DJP - denying overnight visitation to a father who was homosexual and living with a partner.. 667 - in regard to the lesson of Solomon, Dr. Foretich would deserve respect if he made that principle his own now and dropped his litigation. It would be painful, but it would serve his daughter's interest.: - Dr. Morgan remained in jail for over 2 years and was only released when President Bush signed a bill limiting the period of incarceration for contempt to one year.
Ziegler v. Ziegler, (p. 668). The wife was challenging the authority of the court to limit the residence of the parties children to an area within a 100 mile radius of Coeur d'Alene, Idaho.had given custody to wife with visitation to the husband.restriction was given to the parties so that neither of them would flew the area without the court's consent.says this violates her right of freedom to travel and therefore must satisfy a compelling governmental interest.Shapiro is was found that limiting travel was necessary b/c it was important for the children to be near both parents.means was no arbitrary, capricious or unduly restrictive. It is therefore affirmed.of the effects of mobility by the custodial spouse is prejudice to the non-custodial parent's opportunity for visitation. - is visitation regarded as an obligation or a privilege?

. VISITATION RIGHTS OF GRANDPARENTS AND OTHER INTERESTED ADULTS

Bucci v. Bucci - pg. 674. grandparents (paternal) got visitation of their granddaughter and the natural mother of Nicole now appeals that visitation order. Following the review of the record we hold that there was sufficient evidence that grandparent visitation was in the best interest of Nicole. Accordingly, we affirm. The mother had resided with the grandparents for awhile during her marriage to their son. Whether the matter concerns custody of visitation, the primary issue is the best interest and permanent welfare of the child. It is in the child's best interest to preserve and nurture those relationships which are meaningful, while avoiding situations which might prove harmful. For 3 years Nicole's mother disappeared with her and the grandparents attempted to send gifts and to discover the appellant's whereabouts. Here, the trial court made a credibility assessment that appellant created the animosity. Also there is the Custody and Grandparents Visitation Act.law did not recognize rights of grandparents to visitation over the natural parent's objection.
Roberts v. Ward &endash; (p. 680). Roberts addresses the power of a court to provide visitation outside of the marital dissolution context provided for by statute. Child born out of wedlock and father was unknown - then mom married. Grandparents had helped care for the child - but now there were disagreements. The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded. One of the frequent consequences for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. Psychological parents. In determining whether or not to grant grandparental visitation, the court must consider the best interests of the child. In doing so, it recognizes that it is primarily the right of the child to know her grandparents which is being protected and not the interests of the grandparents. Plus this is only visitation, not custody. Factors which the court can consider in determining whether or not to grant grandparental visitation include: whether the child has lived with the grandparents and the length of that residence; whether the grandparents have stood in loco parentis to the child; the effect on the child's physical and emotional health; the circumstances which resulted in the absence of a nuclear family and the child's preference. The fact that there is friction between the parents and grandparents will not in and of itself preclude granting visitation rights but may be considered among all the surrounding circumstances. Therefore the grandparents can petition for visitation b/c of their meaningful relationship.

. MODIFICATION OF CUSTODY AND VISITATION ORDERS

In Re Custody of Dallenger - Husband was awarded custody of his two children following his divorce. His ex-wife petitioned for modification and received custody of her children at the trial court.
Rule - since custody ought to be difficult to change after a decree is made, a party petitioning for change must show that there is a danger to the physical, mental, moral, or emotional health of the children involved, not merely that a change would be in the best interests of the children.
NOTE:
The UMDA states that there must be a change in circumstances. - list emotional, moral, etc. This burden put on the party seeking a change in custody was developed intentionally to further the policy that custody ought to be difficult to change after a decree is made. For the father - the order granting modification is reversed. While you look at best interests - in order for a court to even have jurisdiction over the matter you must have a change in circumstances.requirement that a party seeking a change in custody show a material change in circumstances is almost universal. Burchard.
In Re Marriage of Wall, interpreting the joint-custody statute in Colorado to require only a showing that modification is in the child's best interests, rather than the material change of circumstances necessary for ordinary custody modification.the most common changes is remarriage of one of the parents. It is often said that remarriage of the noncustodial parent does not by itself constitute a material change in circumstances ** random question - when a person is remarried and they are the custodian, can a noncustodian as to lower child support????law of most states is that absent a court order restricting their movement, the custodial parent and the child are free to move to another jurisdiction. pg. 687.
an exception to the changed-circumstance requirements is sometimes recognized where the parties have not fully litigated the custody issue. This exception may also take the form of "prior unknown facts." This is information that was not known and could not have been discovered by reasonable diligence prior to the initial decree.

. Oregon Statutes
ORS 107.135(1)(a) and (b). pg. 37. modifications of decrees.
ORS 107.138. Ex parte temporary custody or visitation order in custody modification proceeding prohibited; temporary status quo order allowed.
ORS 107.149. pg. 40. Policy. encourage interaction of parents with children and encourage shared responsibilities. Parenting plan. And parenting time.
ORS 107.154. Effect of order granting sole custody of minor child to one parent on authority of other parent. Right of person not having sole custody. For example, right to school records, etc.
ORS 107.159. Effect of order granting visitation rights or restricting ability of custodial parent to change residence. Limited to 60 mile radius of other parent unless notice is given.
ORS 107.164. When parents to notify each other of emergency circumstances or substantial change in health of child.
ORS 107.169. Joint custody of minor child; order; conditions; modification. when parents have agreed to joint custody, the court may not overrule that agreement by ordering sole custody to one parent. Must have changed circumstances in order to modify - unwillingness to cooperate is an example.
ORS 107.174. Modification of order for visitation of minor child; stipulation; exception for nonresident child. Talks about jurisdiction.
ORS 107.179. Request for joint custody of minor children; mediation proceeding; exception; privileged communications. When one party objects to joint custody the court requires mediation.
ORS 107.431. Modification of portion of decree regarding visitation of minor child; procedure. talks about jurisdiction.
ORS 109. 121. pg. 64. Procedure whereby grandparents may establish visitation rights with grandchildren. court guided by best interests of the child.
ORS 109.123. Power to grant visitation rights discretionary; effect on care and custody orders.
VII. CHILD CUSTODY JURISDICTION

A. INTRODUCTION
As with other jurisdiction questions, determining whether a court has jurisdiction to decide a custodypotentially involves two issues:the court have jurisdiction to determine child custody under state statutes and court rules and the federal Due Process Clause?a court in another state has previously entered a custody decree involving this child, must this court give Full Faith and Credit (FF and C;) to that decree? If so, what does giving FF and C in this context mean?
the widespread adoption of the Uniform Child Custody Jurisdiction Act (UCCJA) and enactment of the Federal Parent Kidnapping Prevention Act of 1980 (PKPA), state courts typically held that there were alternate bases for asserting jurisdiction to decide a custody case:the child were domiciled in the state,the child were present in state, orall persons who claimed a right to custody were subject to the court's personal jurisdiction.
: old rule &endash; child custody orders were modifiable b/c the orders weren't final (due to ability to modify) which is circular.
Custody decrees were generally not considered to be entitled to Full Faith and Credit because they were not final orders. Because of the multiple bases for jurisdiction, the lack of a FF and C requirement for custody orders, and the discretion judges have on the merits of custody suits, it was entirely possibledifferent states to have simultaneous jurisdiction to decide a child's custody and for them toinconsistent decrees on the merits. This provided a structure and motivation for people whoa custody battle in one jurisdiction to snatch the child, run to another state, and seek a favorabledecree there.
The UCCJA is state law which determines whether a court has subject matter jurisdiction to decidecustody case. The PKPA is a federal state which determines when courts must give FF and C todecrees from other states. Together the UCCJA (which has been adopted with or withoutin all states) and the PKPA are supposed to solve this problem by:the grounds for asserting jurisdiction to decide custody cases initially, and particularly by trying to force custody litigation into the state with the most information relevant to the merits of the suit, andstates to enforce custody decrees of other states and prohibiting them from modifying decrees of other states in many circumstances.

B. THE SCOPE OF APPLICATION OF THE UCCJA IN OREGON

1. The UCCJA applies to all proceedings in which custody is at issue, including juvenile court neglect and dependency proceedings.
ORS ¤ 109.710(3). Stork v. Stork, held that failure to plead as required (see discussion under procedure section below) and failure of trial court to find jurisdiction under UCCJA deprived it of subject matter jurisdiction to decide custody, a defect which can be raised not only on direct appeal but also collateral attack. The recent Oregon case of State ex rel. Torres v. Mason, (1993), held that the UCCJA applies to adoption proceedings.
2. THE UCCJA -- Assertion of initial jurisdiction to decide custody.

ORS ¤ 109.730, which is ¤ 3 of the UCCJA, (Supp. p. 72) governs. There are four alternate bases forto decide custody: (none are given priority)
The court is in the home state of child now or in a state which was the child's home state within the previous six months if the child is absent and a custody claimant is still in the state. Home state is defined in ¤ 109.710(g)--generally the state in which the child lived for the previous six months. It continues up to 6 months after child leaves as long as someone involved is still there.
Asserting jurisdiction is in the best interest of the child because of a significant connection between the state and at least one parent and because substantial evidence pertaining to the merits is available in the state.. This has the potential for swallowing up the UCCJA structure and returning to the principle that if a child is present in the state, the court has jurisdiction. This section is supposed to be invoked only in true emergencies, and commentators say that a court which asserts jurisdiction on this basis should only enter a temporary custody order pending adjudication in the home state or significant connection state.section is rarely used. It applies in the odd situation where no state has jurisdiction under the other three categories, or the states with jurisdiction have declined to exercise it.

3. How to Interpret the Significant Connection Jurisdiction Test where another state is a child's home state.
The "best" view is that when the issue is whether a court should take initial jurisdiction, it should interpret the significant connection test narrowly if another state has home state jurisdiction because that will tend to force the litigation back to the home state, which is more consistent with the goals of the UCCJA. Some courts do this, while others do not. Under the proposed changed to the UCCJA (supp. p. 10), if a child had a home state, no court in another state could find that it had significant connection jurisdiction (or jurisdiction under the other two clauses -- emergency and catch-all). However, the proposed amendments to the UCCJA have not been adopted, and, of course, Oregon law has not been changed.
If a court finds that it has jurisdiction, the court might decline to exercise it under ORS ¤ 109.780(1)--if a parent has wrongfully taken child or otherwise has unclean hands--or under ORS ¤ 109.770--if another state is a more convenient forum. Both ORS ¤ 109.780 and ORS ¤ 109.770 are discretionary and are used only after the court has already determined that it has jurisdiction under ORS ¤ 109.730.
parallel proceedings are filed in two different states and courts find in both cases that they have jurisdiction, ORS ¤ 109.760, the first in time rule, requires the court in which the later petition wasto stay its proceedings while the other suit proceeds, to prevent conflicting orders. The requirement to stay the suit applies only if the first court asserted jurisdiction consistently with the UCCJA.
4. THE UCCJA -- Duty to enforce decrees from other states and jurisdiction to modify custody decrees from other states.
next issues are when a court in one state must enforce the custody decree of another state and when such a court may modify a decree from another state. The governing statutory sections are
ORS ¤¤ 109.730, 109.830 and 109.840.
a. Step 1 -- Enforcement under ORS ¤ 109.830.
court in one state must enforce a custody decree from another state if the issuing state's assertion of jurisdiction to render the custody decrees was consistent with the UCCJA. If the issuing state's assertion of jurisdiction would not have been permitted under the UCCJA, its custody decree does not have to be enforced by other states.
b. Step 2 -- Modification of a custody decree from another state.
a custody order is issued in one state and the question of the child's custody is now before the court of a second state, that second state may have to determine whether it can take jurisdiction to modify the prior order. If the second state does not now have jurisdiction under ORS 109.730, it may not modify the decree. However, if it would have jurisdiction under this section, it is still possible that it may not modify the decree.

ORS 109.840 provides that if the state which initially issued the custody decree now would also have jurisdiction under provisions substantially the same as ORS ¤ 109.730, the second state may not assert jurisdiction to modify unless a court in the issuing state declines to exercise its jurisdiction. Thus, you must determine whether the issuing state would still have jurisdiction under ¤ 109.730. If the state is still the child's home state, it has jurisdiction. What, though, if some other state (typically the state in which the litigation is now occurring) has become the child's home state? In such a case, the issuing state may still have significant connection jurisdiction. Again, because "significant connection" jurisdiction is not precisely defined, many cases have been litigated under it. The "best view" at this point is that the court in which this matter is being determined should interpret "significant connection" broadly, which will have the effect of denying that court jurisdiction to modify.
problem looks similar to the one we discussed above in the section on asserting initial jurisdiction: How broadly should "significant connection" jurisdiction be interpreted? For initial jurisdiction we said that "significant connection" should be interpreted narrowly where another state was the home state to further the policies of pushing litigation into the state with more evidence and minimizing the risk of multiple, inconsistent custody decrees. However, in the modification context, Grubs v. Ross, the leading Oregon case and a nationally recognized case on this issue, held that the significant connection test should be interpreted broadly. The effect will be that it will be more likely that the state which rendered the prior decree will be found still to have jurisdiction, and therefore that the forum state will not have jurisdiction to modify. As Grubs indicates, this outcome is favored because it promotes stability in custody decrees and deters forum shopping and child snatching, reasons similar to those given in support of a narrow reading of the significant connection test in the context of initial jurisdiction.
In Settle, the Oregon Supreme Court had held that in a modification proceeding significant connection should be interpreted narrowly, so that other states would be more likely to have modification jurisdiction, arguing that deciding the dispute on the merits promptly was in the child's best interest. The Grubs court responds that it is in child's best interests to have stability in custody decrees. Note that Grubs isn't an absolute rule that the prior state always retains significant connection jurisdiction just because a claimant is still there; the court suggests that if child had been in Oregon longer (how much longer?) Montana could have lost jurisdiction. Note that under the proposed amendments to the UCCJA (supp. p. 10), continuing jurisdiction in the issuing state is much more strictly protected.
this analysis, even if the court in the second state is found to have modification jurisdiction, the court might still decline to exercise the jurisdiction on the same bases that we discussed for discretionary refusals to take initial jurisdiction: under ORS ¤ 109.770 (inconvenient forum) or ORS 109.780 (unclean hands). But again, these are discretionary reasons for declining jurisdiction and the analyses are done only after the court determines that it has jurisdiction under ORS ¤¤ 109.730 and 109.840.
5. THE PKPA -- States' duties to give Full Faith and Credit to custody decrees from other states.
PKPA was enacted by Congress to implement the Full Faith and Credit Clause of the Constitution, and it applies only to cases in which a court proposes to refuse to enforce a custody decree form another state or to modify that decree. Since the PKPA is federal law, under the Supremacy Clause of the Constitution, even if you find that under state law (the UCCJA) that a state does not have to enforce or may modify a custody decree from another state, you must check to see if this would be allowed by the PKPA. If the PKPA would prohibit the state court's actions, it must not act.
The PKPA doesn't directly discuss when a court may assert initial jurisdiction to decide custody because initial jurisdiction does not raise a FF and C issue. However, under the PKPA, whether a state must enforce and may not modify another state's decree depends on the jurisdiction of the original court. If jurisdiction to make the initial decree was asserted under conditions specified by the PKPA, other states have obligations to enforce and not modify the decree. If the initial assertion of jurisdiction was inconsistent with the provisions of the PKPA, other states are not obligated to enforce the decree, and there is no federal bar to modifying the decree. Therefore, indirectly the PKPA does prescribe the bases for asserting jurisdiction initially.
So, if one is faced with a question of whether a state must enforce the custody decree of a prior state and whether that state may modify the decree, the first question is whether the first state asserted jurisdiction consistently with the PKPA.
6. A state asserts initial jurisdiction consistently with the PKPA if:
is the child's home state, with home state defined the same here as under the UCCJA, or;the state has a significant connection with the litigation and substantial evidence is available in the state, or;is emergency, or;other state has jurisdiction under the tests set out in 1, 2 or 3.

HOWEVER, a state which asserts jurisdiction under 2, 3 or 4 when another state is the child's home state does not assert jurisdiction consistently with the PKPA, and its decree is, therefore, notto be enforced unless the home state has declined to exercise jurisdiction!

The principles of the PKPA are similar to those of the UCCJA, but the provision that forbids states to assert jurisdiction on any basis other than home state jurisdiction where there is a home state unless the home state declines to exercise jurisdiction expresses an even stronger preference for stability of custody decrees than does the UCCJA.
7. Duty to enforce other states' custody orders under the PKPA:
, to reiterate, if the original custody litigation had been brought in a state which asserted jurisdiction consistently with the PKPA, all other states must the custody decree. If the original assertion of jurisdiction was not consistent with the PKPA other states do not have to enforce the custody decree, though they may do so as a matter of comity.
8. Authority to modify other states' custody orders under the PKPA:
next question is when a state may assert jurisdiction to modify a custody decree from another.
a. Step 1 &endash;
Does the law of the state in which the modification motion has been filed give the court jurisdiction to modify? This means, does the UCCJA give the court jurisdiction to modify? If it does not, that's the end of it. But, if it does, go to the next step to determine whether the PKPA precludes exercise of that jurisdiction.
b. Step 2 &endash;
Did the state that rendered the prior decree assert jurisdiction consistently with PKPA and if so, does the law of the state that rendered the prior decree provide that it has jurisdiction to modify and, if so, is it still the residence of the child or a person claiming custody?
If the original state's assertion of jurisdiction was not consistent with the PKPA, its decree does not have to be enforced and so can be "modified." If, however, the original assertion of jurisdiction was consistent with the PKPA, other states may be precluded from asserting modification jurisdiction. This will be so if 1) the issuing state's own law provides that it still has jurisdiction to modify, and 2) the issuing state is still the residence of the child or a person claiming custody. If the issuing state still has jurisdiction under this test, no other state may modify the custody decree unless the issuing stateto exercise its jurisdiction.

C. PROCEDURAL MATTERS
the UCCJA and PKPA contemplate that courts will do lots of deferring to one another, which requires that they be aware of one another's decrees and other actions. To insure that courts have this information, ORS ¤ 109.790 imposes pleading requirements. By affidavit parties must give the child's present address, the child's address for the past five years, and whether other custody proceedings are pending or completed. Parties have a continuing duty to keep the court informed of developments in these areas.
ORS ¤¤ 109.740 and 109.750 govern notice, which must give to all claimants. ORS ¤ 109.800 allows joinder of claimants, ORS ¤ 109.810 authorizes the court to order claimants to appear, and
ORS ¤ 109.820 says a decree is binding on all who have notice.
A court may have jurisdiction and decide to exercise it but need information available in another state. ORS ¤ 109.880 provides for out of-state depositions, and under ORS ¤ 109.830 a court may request that a court in another state hold fact-gathering hearings or do social studies and send the results here. Under ORS ¤ 109.900 Oregon courts are to cooperate with similar requests from other states.

The PKPA contains provisions intended to address the problem of finding a person who's gone into hiding with a child in defiance of a custody order.
1) The Federal Parent Locator Service, set up to facilitate child support enforcement, is available.
2) The Federal Kidnapping Act was amended to make interstate flight by parents to avoid criminalprosecution for child-napping come within its provisions, which allows for FBI involvement.this statute to be effective, a state statute must make child-snatching a felony. Most states nowsuch criminal statutes. For example, ORS ¤¤ 163.245 and 163.257 say that it is a felony take,or keep a person from the person's lawful custodian with intent to keep the child for aperiod, knowing or with reason to know you have no legal right. If the actor violatesprovisions within the state, it is a class C felony. If the actor violates these provisions andthe person to be removed from the state or exposes the person to substantial risk of illnessphysical injury, it is a class B felony. A person with joint custody who keeps a child from thecustodian violates this statute, and parents who do not yet have any custody orders areto have joint custody for purposes of this rule.
D. FEDERAL ENFORCEMENT OF STATE CUSTODY ORDERS
the book indicates, generally federal courts do not hear diversity cases in which the underlying cause of action is a domestic relations dispute because of the "domestic relations exception" to federal jurisdiction. In Thompson, note 6 p. 481, the Supreme Court held that the PKPA doesn't give federal courts federal question jurisdiction over custody disputes with an interstate aspect
In California v. Superior Court, same note and same page, the Court held that in an interstate proceeding to extradite a person charged with the crime of custodial interference the court responding to the extradition order may not inquire into the underlying merits of custody jurisdictional disputes.
 
VIII. DIVORCE, SUPPORT, AND PROPERTY DIVISION JURISDICTION AND FULL FAITH AND CREDIT

A. BASIC TERMS AND PRINCIPLES

1. Divisible Divorce:
The jurisdictional requirements for granting divorce, ordering spousal or child support, and dividing property are different. A court may have jurisdiction to enter one kind of order and not another.
2. Full Faith and Credit Clause (Art. IV, ¤ 1 of Constitution):
The Full Faith and Credit Clause of the Constitution requires that state courts recognize, enforce and give full effect to the final judicial decrees of other states. More specifically, each state much give the same effect to the judicial proceedings of the other states that the state in which they occur would give them.
The only times a state is not constitutionally required to recognize the court order of another state Are (Here the Full Faith & Credit doesn't apply):
If the order is not finalthe court that rendered the order lacked jurisdiction. This means that if a final decree of one state's court is brought to the court of another state, the second state must enforce the order unless the court that granted the order lacked jurisdiction to do so. Whether the court which issued the order had jurisdiction may ordinarily be litigated in the court of the state which is being asked to enforce the order. The granting court's finding that it has jurisdiction is not entitled to full faith and credit because, if it were, it would be impossible to implement the rule that orders entered by courts without jurisdiction are not entitled to full faith and credit.

B. DIVORCE DECREES--JURISDICTION AND INTERSTATE RECOGNITION

1. Divorce:
If the court is located in a state which is the domicile of at least one of the spouses, the court has jurisdiction to divorce them. A person is domiciled in the state in which s/he is resident and intends to continue living for the indefinite future. Today most states have statutes or court rules that require at least one party to be domiciled in the state before its courts will assert divorce jurisdiction, and, in addition, they impose durational residency requirements of a few weeks to a year or more. A person may be a resident without being a domiciliary of a state; you, for example, are certainly a resident of Oregon, but you are not a domiciliary if you intend to move back to your home state after law school is over.

2. Full Faith and Credit for Divorce Decrees.
Williams v. North Carolina cases discussed in the text, which were decided in the 1940s, held that the Full Faith and Credit Clause requires a state to recognize as valid a divorce granted by a court in another state (here, the notorious state of Nevada) if that other state was the domicile of at least one spouse. If neither spouse was domiciled in the state that rendered the divorce decree, courts of other states don't have to recognize it.
3. Due Process and Assertion of Jurisdiction:
the time of the Williams cases, it was assumed that due process requires that a state be the domicile of at least one party before it can assert jurisdiction to divorce., at least in theory, it's possible that under a modern International Shoe/Shaffer v. Heitner minimum contacts test a state in which neither spouse was domiciled might have enough contacts with the parties to permit it to assert jurisdiction to divorce them without violating the Due Process Clause. However, there are no Supreme Court cases addressing the minimum due process requirements that must be satisfied before a state to assert divorce jurisdiction. As a practical matter, everyone assumes that domicile is still required.that due process also requires notice to the adverse party.

4. Jurisdiction to divorce in Oregon:

ORS 107.075 (1), which requires that the marriage have been solemnized in this state and that a party be a resident or domiciliary of the state, applies to annulment or divorce under 106.020 (bigamy, consanguinity) or 107.015 (insufficient age, incapacity to consent, force or fraud). (The usual remedy sought is an annulment.) True divorce is governed by subsection (2), which also governs annulment for any other reason or for annulment for one of reasons listed above if the marriage was not solemnized in Oregon. It requires that at least one party have been resident of or domiciled in this state at the time of filing suit and for at least six months beforehand.

ORCP 4 imposes an additional jurisdictional requirement. Section K governs marital and domestic relations actions. Subsection (1) governs questions of status, including divorce, and it requires that the plaintiff be resident or domiciled in state. In addition, under subsection A court has jurisdiction if the defendant is domiciled in the state. In addition, subsection L is a catchall that grants jurisdiction in cases not specifically covered where it's not unconstitutional to assert jurisdiction. (For the constitutional analysis, see discussion of Kulko below.)

5. Getting around the Williams rules:
interaction between res judicata rules and FF and C: In another FF and C case discussed in the text, Sherrer v. Sherrer. The Supreme Court held the Full Faith and Credit Clause requires states to give the same res judicata effect to divorce decrees from other states that they would give to their own. In particular, it held that if:spouses participated in the judicial proceedings culminating in the divorce decree to a sufficient extent thatthe divorce decree had been granted by a court in the state in which the divorce is being collaterally attacked, the court would not allow the collateral attack because of res judicata, thencourt must give the same effect to the divorce decree from the other state, that is, it must not allow the collateral attack.effect of the Sherrer rule is that between spouses, it is possible for a court which is located in a state which is not the domicile of either spouse to render a divorce decree which may not be attacked by either spouse.

All states say that a spouse who participates in a divorce is barred by res judicata and, under Sherrer, by FF and C, from collaterally attacking the divorce. What amounts to sufficient participation to justify raising this res judicata bar has been litigated in a number of cases. It is clear that if a spouse participates in the original divorce proceedings in any of the following ways, s/he cannot later collaterally attack the decree:
appearing in the proceedings in person or by an attorney and contesting jurisdiction,in person or by an attorney and having the opportunity to contest jurisdiction even though jurisdiction is not actually contested,personally served while within the state (see discussion of Burnham v. Superior Court of California, (below),becoming subject to the court's general personal jurisdiction under a long arm statute, andeven being served by mail outside of the state, signing and returning consent to entry of default order, depending on the state.

The preclusive effect of res judicata rules can extend even further. In Johnson v. Muelberger, also discussed in your text, the Supreme Court held that if persons other than the spouses may not collaterally attack a divorce in the state which rendered the decree because they don't have standing or because they are in privity with one of the spouses, those other persons cannot collaterally attack the divorce in other states. The rules about standing and the extent of privity vary from state to state.
: Standing--In some states children of spouses lack standing to collaterally attack a divorce. Privity--Frequently the administrator of a deceased spouse's estate is considered in privity with the decedent. This means that if the decedent spouse would have been unable under Sherrer to attack the divorce collaterally, the administrator cannot attack it either.

6. Recognition of divorce decrees from other countries:
Full Faith and Credit requirements described above do not apply to court orders, including divorce decrees, from other countries because the Full Faith and Credit Clause only deals with orders rendered by states of the U.S. Thus, courts have no full faith and credit obligation to recognize or give any effect to divorce decrees granted in other countries.
, if the foreign country is the domicile of at least one of the spouses, a divorce decree rendered by its court will be recognized by U.S. courts as a matter of comity.
of some states will go further than this and recognize a divorce decree from another country even though neither spouse was domiciled in the country if, had the decree been entered by a court in a U.S. state, it would have been entitled to FF and C under the Sherrer and related rules. Not all states will do this, though. Some courts refuse to recognize foreign divorces if the foreign country's divorce law is fundamentally inconsistent with the law of the state which is asked to recognize the foreign divorce.

7. Estoppel
another way to get around lack of jurisdiction to grant a divorce: Even if the court which purported to grant a divorce lacked jurisdiction under the principles discussed above, the party claiming that the divorce is invalid for lack of jurisdiction may, under some circumstances, be estopped from taking this position.is a doctrine that can be applied to domestic and foreign "divorces."most obvious case for estopping someone from denying that a divorce is valid is when the petitioner in the divorce later claims that the court lacked jurisdiction.may also be estopped even when they have not so clearly asserted that the divorce court had jurisdiction. For example, a person who was aware of all the circumstances surrounding the "divorce" and who remarried in apparent reliance on the divorce may be estopped from attacking the divorce because to do so amounts to taking inconsistent legal positions. If the person was not aware of all the circumstances,courts would still estop him/her from attacking the divorce, while others would not.
important reason that courts invoke estoppel is to protect the lived expectations of all the people who have acted as if the divorce were valid. Sometimes courts say this expressly; other times it is implicit in the court's holding. As one court said, there is "little, if any, interest in encouraging the resurrection of deceased marriages, even if they were pronounced dead by other tribunals whose processes are not completely consistent with our own."
is a flexible doctrine, rather than a strict rule. Not all courts would recognize estoppel at all, and those which do recognize it would not necessarily come to the same results in close cases. All you have to be able to do is make the arguments both ways.

8. Comments about Sherrer and related rules and about estoppel:
a court finds that a party is estopped from denying the validity of a divorce, it means that as to that party the divorce is treated as legally effective., this does not mean that the spouses were validly divorced for all purposes. For example, to hold that one spouse is estopped to deny the validity of a divorce means that for purposes of the spouses' rights and duties to each other, they are divorced., if one of them remarried and the state then wanted to prosecute him/her for the crime of bigamy, the state would not be estopped from denying the validity of the divorce.this means is that you can be married for some purposes and not for others.is also the effect of the Sherrer and Johnson v. Muelberger rules. Under Sherrer spouses who "participated" in obtaining a "divorce" in a state without jurisdiction cannot later collaterally attack the divorce because of res judicata., under Johnson another person who lacks standing to attack a divorce or who is in privity with one of the spouses also cannot attack the divorce., other parties who are not in privity with either spouse and who have standing to attack the divorce may attack it by showing that the court which purported to grant the divorce lacked jurisdiction.

C. SUPPORT ORDERS--JURISDICTION AND INTERSTATE RECOGNITION

1. Personal jurisdiction to enter support orders--long arm statutes and constitutional limits:
to determine support duties, both spousal and child, are, in traditional terms, in-personam actions. If the opposing is served in the state, the court has personal jurisdiction.recently as 1990 the Supreme Court upheld the constitutionality of asserting jurisdiction to determine support duties based on personal service within the state, even though the person served was only in the state briefly on unrelated business. Burnham v. Superior Court of California, 110 S.Ct. 2105.
The problem is under what circumstances a court may assert jurisdiction to determine spousal or child support when the defendant is not personally served within the state.

This requires a two-step analysis:

I) Does the state's long-arm rule give the court jurisdiction?

ORCP 4 is the basic Oregon long-arm rule. Under ORCP 4(A), the court has jurisdiction over a defendant who is present in the state when served, or who is domiciled in this state.ORCP 4(K)(2) the court has jurisdiction over defendants for purposes of enforcing "personal obligations under ORS chapter 106 or 107," which includes spousal and child support, if the parties have both lived in Oregon at least six months.this criterion is satisfied, Oregon courts continue to have jurisdiction over a person who moves away from Oregon for up to one year.ORCP 4(A) or 4(K)(2) is not satisfied, an Oregon court could still have jurisdiction to enter a support order under ORCP 4(L), which says that courts have jurisdiction in any case not covered by a specific subsection where due process wouldn't be violated by asserting jurisdiction. This takes us to the next step.addition, under ORS 110.318, which is based on UIFSA ¤ 201, a court has long-arm jurisdiction to determine child or spousal support if the defendant is personally served in the state, consents to being subject to jurisdiction, resided with the child in this state, resided in this state and provided prenatal expenses or support for the child, or engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse, or if the child resides in this state as a result of the acts or directives of the defendant.this section also has a catch all clause which gives the court jurisdiction if consistent with the state and federal constitutions.

II) If the long-arm rule gives the court jurisdiction, does its application violate the due process rights of the defendant?
the Supreme Court has not considered due process limits on jurisdiction to grant a divorce under the International Shoe minimum contacts test, it has decided a case applying the minimum contacts test to support actions, Kulko v. Superior Court, which is discussed in your text.Kulko California sought to assert jurisdiction over a father in New York for purposes of establishing a child support obligation.father had been present in California briefly 13 years before to be married, and he had agreed to let his daughter visit her mother in California for three months a year, but the California court did not rely on either of these contacts as its basis for asserting jurisdiction. Instead, the court held that his action of voluntarily sending his daughter to California to live with her mother permanently was a sufficient contact.a person shipped a defective product to a customer in California, and the product had harmed the customer, this would have been a sufficient contact between the seller and California to permit California to assert jurisdiction over the seller in a personal injury suit., in Kulko the Supreme Court distinguished support actions from such tort suits, holding that the father's action was not a sufficient contact with California to enable California to assert jurisdiction over him for the support action.
The Kulko It justified its holding by saying:courts to assert jurisdiction under these circumstances would discourage parents from agreeing where children should live.sending his daughter to California the father had not "purposefully availed himself" of the "benefits and protection " of California laws. This test echoes the Hanson v. Denckla test, that the state may assert jurisdiction only if the defendant purposefully availed him/herself of the privilege of conducting activities in the state.Uniform Reciprocal Enforcement of Support Act (URESA) provides a way for a would-be support recipient in one state to obtain jurisdiction over a would-be payor in another state without having to travel to the state in which the would-be payor lives. This lessens the burden on would-be recipients. It doesn't seem to be important where the most evidence is likely to be available.
NOTE: One way of understanding Kulko is that it is the first of a series of cases since mid-70s which cut back on the broad implications of the International Shoe minimum contacts test, shifting away from broadly endorsing plaintiffs' choice of forum to protecting defendants from having to litigate in inconvenient forums and protecting the territorial prerogatives of states.
2. Full Faith and Credit for support orders from other states
orders incident to divorce are not entitled to FF and C if the court lack jurisdiction to enter them.particular problem area is that a court may have jurisdiction to grant a divorce but not to enter support orders, which is possible because of the different jurisdictional bases discussed above.tricky aspect of this is that even if the court which entered the divorce did not purport to determine spousal support rights, it may de facto do so, since ordinarily if spousal support is not provided for at the time of divorce, a court cannot later order that it be paid.Supreme Court has held that FF and C requires that courts preclude people from bringing a separate suit for spousal support after a court in another state entered a divorce decree which didn't award spousal support., if you participate in divorce proceedings in another jurisdiction sufficient to give court in personam jurisdiction, and if you don't get an agreement regarding support obligations first or, failing that, if you don't litigate support rights, the court may still enter enforceable order adversely affecting your support rights.can be argued that states must have a general exception to the rule that spousal support cannot be awarded after a final divorce decree has been entered which permits spouses who were defendants or respondents to sue for spousal support if they were not subject to the personal jurisdiction of the court which granted the divorce.to make this exception arguably violates due process because it permits the defendant or respondent's rights to be affected adversely when s/he was not subject to the court's jurisdiction and had no opportunity to be heard. (For your information, there are no Oregon cases clearly on point.)court must also have personal jurisdiction to enter a child support order, but all jurisdictions allow suits to be brought to enforce child support obligations after a divorce even if the initial divorce decree did not provide for child support.most pressing problem in real life about interstate enforcement of support is that obligees rarely have enough money to go to the state in which the delinquent obligor can be found, hire an attorney, and undertake enforcement litigation.solve this problem all states have enacted either the Uniform Reciprocal Enforcement of Support Act (URESA) or the Uniform Interstate Family Support Act (UIFSA).all states must enact UIFSA by January 1, 1998, pursuant to the federal welfare reform legislation enacted in 1996, that's all we will discuss and all that you're responsible for.

D. UIFSA

1. The theory of how UIFSA is supposed to work is pretty easy.
recipient files a petition in his or her home state court.court examines the petition to see if it states a prima facie claim for support and whether the state in which the obligor is said to be can get jurisdiction over him or her.so, the home state court certifies the case to the analogous court in the state where the payor can be found.court in the receiving state dockets the case and notifies the local prosecutor, who prosecutes the case. Then there's a regular hearing on the allegations of the petition.the court finds that the obligor owes support, it issues order to that effect, enforces it, and has the money collected and sent back to the state where the would-be recipient is waiting.
Two critical questions are:
Under what circumstances a state must enforce a support order from another state anda state may modify a support order issued by another state. Before UIFSA and the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. ¤ 1738B, discussed on p. 762,
The answers to these questions were hazy because as a constitutional matter only final judgments have to be enforced. It was also unclear what it even meant for the court in one state to purport to modify an order issued by a court in another state.
UIFSA solves the problems by providing:

UIFSA ¤ 205 - ORS 110.327(1), -- the state that issues a child support order has continuing, exclusive jurisdiction to modify the order so long as the obligor, the obligee or the child continues to live here, unless all the parties agree in writing to authorize another state to assert jurisdiction. Once a state acquires personal jurisdiction to issue a spousal support order, it has continuing, exclusive jurisdiction over the order throughout its duration. UIFSA 205(f), ORS 110.327 (6).

UIFSA ¤ 603 - ORS 110.408 -- When an order from another state is registered here, it is entitled to enforcement.

UIFSA ¤ 611 - ORS 110.432 &endash; (when modification allowed on other states orders) This state may modify a child support order from another state only if the other state is no longer the residence of the child, or the obligor or the obligee, and if this state has personal jurisdiction over all the parties, or a party or the child is subject to personal jurisdiction in this state and all the parties have filed written consent to this state taking jurisdiction. This provision does not apply to spousal support; only the issuing state has modification jurisdiction for spousal support. I expect that ORS will be amended to conform to the changes to ¤ 611, 613 and 614 discussed in your supplement. Those amendments clarify rather than changing the original version of UIFSA.

_ States are required to enact these interstate recognition rules regarding child support, both because the 1996 welfare reform legislation explicitly requires enactment of UIFSA and because of the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. ¤ 1738B, p. 762, enacted in 1994, which requires these rules as a matter of full faith and credit.
_ In particular, under FFCCSOA states have continuing exclusive jurisdiction over child support so long as a child or a contestant lives in the state unless the parties agree in writing to allow another state to assert jurisdiction. States cannot modify the child support order of another state unless that state has lost continuing exclusive jurisdiction, and states must enforce child support orders from other states.

E. PROPERTY DIVISION JURISDICTION, FULL FAITH AND CREDIT & CHOICE OF LAW

1. Jurisdiction to divide property incident to divorce and interstate recognition of property division orders:
traditional principles, a court has jurisdiction to determine the ownership of property if the property is located within the state where the court is located.property is generally considered located in the state in which its owner is domiciled.the modern due process minimum contacts test, a court which is not located in the state in which the property is located but which has sufficient contacts over both husband and wife to permit it to assert jurisdiction to grant a support order would also have jurisdiction to adjudicate the spouses' property rights as between them, including their rights in real property not located in the state where the court is located. For example, if H and W were domiciled in and actively litigating their divorce in Oregon, the Oregon court would have jurisdiction to determine which spouse should be awarded their vacation home in California., there is a problem with enforcing such an order. If real property which is the subject of a divorce decree is located in the state that enters the property division order, you can register the decree in the record of title, and this is sufficient to change title., if the real property is not located in the state that enters the decree, the decree cannot be taken to the other state and used to change title. Fall v. Eastin the divorce court could enter an order to the party whose name is on the title to go to the state where the property is located and convey the property to the other person.if that isn't done, what happens? In this kind of situation some courts hold that, since there has been no effective conveyance by the person holding title, and since the decree cannot of itself change title, the property belongs to the person whose name is on the title, notwithstanding the decree.the Restatement of Judgments Second and some courts take the position that the decree in the first state is binding as between the parties and so should be enforced in the state where the property is located unless to do so would violate a fundamental policy of the state.same kind of problem can arise for personal property. For example, say that at time of divorce the spouses have a car titled in H's name in California. They are divorced in Oregon, and the car is awarded to W as part of the property division. H also has to be ordered to go to California and change title. If he does not go, W will probably have a hard time getting clear title to the car, since the California Department of Motor Vehicles may not change the title even if it is presented with the Oregon decree.ion in California to establish that the divorce decree is binding between the parties is theoretically possible, but as a practical matter it's not worth the cost of bringing suit. W's lawyer should have the papers ready for H to sign at the time of divorce.
 
IX. FAMILY FORMATION
 
A. COMMON LAW MARRIAGE AND RIGHTS OF UNMARRIED COHABITANTS (p. 139)
1. Introduction (p. 139)
1970, 523,000 unmarried heterosexual couples lived together. By 1993 the number had risen to 3.5 million.

Larry L. Bumpas (p. 139) &endash; The proportion of first marriages that were preceded by co-habitation increased from 58% for marriages in the late 1960's to 49% between those in 1985-86. Two major factors at issue:
. The first is the erosion of normative objections. Shacking up was offensive, but this changed.
. We are less sure about marital stability (thus couples try-out marriage first).length of cohabitation is very short &endash; median is about 1 _ years. _ of cohabitors expect to marry their partner, a quarter do no. And in 10% of cohabitating couples, neither partner expects marriage.
Mary Ann Glendon (p. 141) &endash; Motivations to enter "informal" rather than "formal" marriage include: economic advantages as in the case of many elderly people, inability to enter a legal marriage, unwillingness to be subject to the legal effects of marriage, desire for a "trial" marriage, and lack of concern with the legal institution. Lack of concern stems from the fact these people find that on balance, the legal marriage offers no advantages over informal arrangements.
2. Common Law Marriage, Presumptions of Marriage and Putative Spouses (p. 142)

a. Common Law Marriage (p. 143)

In re Marriage of Winegard (p. 145) Couple holding yourself out as husband and wife. Burden is on the proponent of the marriage to prove it by a preponderance of evidence. A claim of common-law marriage is regarded with suspicion and is closely scrutinized. To establish the existence of such a marriage there must be shown 1) a present intent to be husband and wife, 2) followed by cohabitation. The following go to prove intent:
. Sally's intent and belief with respect to her relationship with John
. Opinions of witnesses that they regarded themselves as married
. Continuous cohabitation since 1971 to 1973
. John's failure to deny marriage
. John's Winegard's acquiescence in Sally's use of his name and her representations to the community that they were married.
. Sally's receipt f a wedding band
. Hotel registrations and travel reservations in Mr. And Mrs. Winegard.
. Credit cards as Mrs. Winegard and gifts, photos, and other stuff as Mr. & Mrs. Winegard.
. Sally as beneficiary of John's life insurance.
. Checks from John made out to "Sally Winegard"&endash; Sally got $75K instead of alimony, and it was raised on appeal to $140K.
See Utah's statute on p. 150 showing elements of common-law marriage.

b. Presumptions of Marriage &Putative Spouses (p. 153)

Spearman v. Spearman (p. 153) &endash;spouse &endash; is one whose marriage is legally invalid, but who has engaged in (1) marriage ceremony or a solemnization, on the (2) good faith belief in the validity of the marriage.theory under which the "putative spouse" is entitled to recover a share of the insurance proceeds is that, as the insured's putative spouse," she is entitled to share in the property accumulated by the family unit during its existence. The general rule, is that they are entitled to the same share in the "marital" property as would have been accorded a de jure spouse under the community property laws.
p. 158 for UMDA version of putative spouse.
3. The Legal Position of Unmarried Cohabitants (p. 159)

a. Rights and Duties Between the Parties (p. 159)

Marvin v. Marvin (p. 159) &endash; Oral agreement between Lee Marvin and his companion. They agreed to hold themselves out to the general public as husband and wife. The court said it may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or join venture. The courts may, when appropriate, employ principles of constructive trust or resulting trust. See p. 162. The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property , or expenses. Court upheld oral agreement w/out there being a marriage.
v. Hewitt (p. 163) &endash; court allowed express K, but no equitable remedies. Here the woman was the smart rich one and the guy was not. Issue &endash; whether property rights accrue to unmarried cohibitants. She had a pension and investments while he did the manual labor. Because common law marriages contracted in Illinois were invalid after 1905, there was none her. Thus, without an express K about how property was to be divided, each party gets what they made.

The reality &endash; few people who are not married, but are living together, make express K's &endash; which are not necessarily written, but meeting of minds and clear in terms. (mainly gay couples).
After Marvin &endash; really hard not to be married. Studies how that it's hard to give resulting trust, constructive trust (quantum meriut &endash; unjust enrichment) and equity in general.
Hard to prove &endash; express K's, oral K's, implied K's. Economically weaker party tends to lose.
Oregon &endash; if express or implied K &endash; we will enforce it. (see pp. 14-15).
Q: how do you divide the property?
Could divide using divorce law, but if they do it on its face, then other couples may "run-around" the marriage laws. Harris &endash;says this is happening.whatever the judge wants (equitable distribution).
b. Partners Rights and Duties in Relation to Third Parties (p. 171)

. No benefiting from cohabitant's job.
. No health care decision making rights unless provided in will
. Voluntary acts. joint tenancy. joint ownership in other property. wills. trusts (expensive). durable power of atty.
Braschi v. Stahl (p. 171) &endash; the right to rent control apartment goes to family members. Q: what constitutes a family member? 2 men &endash; gay lived together in apartment for 10 years. The two men's families were aware of the nature of the relationship, and they regularly visited each other's families and attended family functions together as a couple. Ct. said they were family under the statute using a "functional family test" &endash; if it looks, acts, and behaves like a family it is a family.said family consists of:. exclusivity. longevity. level of emotional commitment. level of financial intertwining.. manner of conducting themselves as a family.heterosexuals don't live like Braschi. This is problem with functional family test b/c definition of family is skewed.

c. Domestic Partner Ordinances (p. 181)
response to the limitations and uncertainties of the law, a number of cities have enacted domestic partnership ordinances. See p. 181 for San Francisco's statute.

Domestic partner statutes:
Min time limits (6 months)declaration of domestic p'shippartner (to dissolve) has to sign form stating p'ship is over.property rights on its face, but, bone could argue this is an express K (or implied K) to share economic fortune during their relationship.limitationbe notarized.to give notice of beginning the p'ship or ending it, allows 3rd parties to sue for actual damages.

Why choose this? For straight couples &endash; no clear answer. For gays it is the best they have.
B. PARENT CHILD RELATIONSHIP (what constitutes a parent?) (P. 1061)

1. Establishing who is father and mother.

2 basic premises that underlie the law in this area:
1. every child has a least one legal father and mother.
. Every child can't have more than one of each.
Michael H. v. Gerald &endash; (p. 1064). Carol (a flighty model) married a French businessman but her daughter Victoria was poss. the daughter of Michael.. &endash; found that despite Michael's paternity test showing 98.07% positively that Michael was the blood father, he filed a filiation (paternity suit) too late & he failed to show that he was a "father." So &endash; non-biological father becomes "legal" father.
Scalia &endash; worried that Michael will assume "parental rights."
Brennan &endash; biological paternity in this case insufficient to get custody. Brennan would still look at the "Best Interests" of the child. But &endash; CA case law is against biological father.
7% of all children bort to married couples where father believes the child is his biologically &endash;really isn't!
Old rule &endash; (and California presumption now) &endash; is that child born into a marriage is child of a husband (whether or not it really is). In Calif. Husband can rebut. So CA presumption applies to mother and father. But either can rebut &endash; but mother can rebut only if there's another father wanting to establish paternity.
Oregon &endash;¤ 109.070 &endash; two types of presumptions:
. Conclusive &endash; is when wife is cohabitating w/husband at time of conception and husband is not impotent or sterile.
. Rebuttable &endash; child born in wedlock where there is no separation decree &endash; despite whether marriage is void.
. Assumed man woman marries is the father and filiation (paternity).
2. Protection of Families (p. 1084-1088):

Moore v. City of E. Cleveland (p. 1084) &endash; Right to live as a family which wasn't nuclear. Grandmother, son, other child, two grandchildren, and cousins. There is constitutional right to have related extended family members live together and any restriction on this is subject to heightened scrutiny.
¤ 109.119- (unique and famous) rights of other persons who have "emotional ties" to child.
Hruby &endash; (in 2nd supp). Child is in custody of parent who can't take care of it. They go to sister. 5 years later father gets out of Navy and wants child back.. Sister &endash; gets standing by ¤ 109.119 which authorized intervention in a pre-existing legal proceeding (here divorce).
Oregon &endash; presumption of parent having custody is found in Painter v. Bannister. If conflict between parent and non-parent, non-parent has to show there is a compelling reason for parent not to have custody. Based on inadequate care or harm to child if they stay w/parent. The Aunt is arguing for pure "best interest" standard and wants to wipe out "parental presumption." She wants to treat "psychological parent" w/same standing as "legal parent."
NEW STATUE - ¤ 109.119(1) &endash; gives standing and allows for custody based on "best interest of child." Q: does this override "parental presumption?" Custodial rights &endash; only based upon living w/child for 6 months. See ¤ 109.119(4)(a).

3. Unwed Fathers (p. 1088-1136) &endash; look in book.
for proposition that b/c you are biological father doesn't mean you are guaranteed filial rights.

XI. REGULATION OF MARRIAGE &endash; (ANNULMENTS, WHO CAN GET MARRIED, ETC) SEE -HANDOUT ATTACHED

. Monogamy (see handout enclosed)
2. Relationship (see handout enclosed)

3. Different Sexes (see handout enclosed)

4. Age (see handout enclosed)