1	Ownership and Control of Property During Marriage
a	Generally:
i	These are background law – do not kick in during divorce. Relevant if spouse dies or if there is a third-party creditor situation. 
ii	Image of family unit – Powerful + suggests that family stands independently of state – almost a sovereign
b	Common Law System MAJ – OR + 41 States – English influence
i	Separate property ownership except those items they have expressly agreed to hold jointly.  
ii	Control and management:  
(1)	Gain control by having name on title and buying the property.  
(2)	Also control gifts.   
(3)	Rewarded for labor in the marketplace – ownership determined by how much market labor went into it. 
iii	Third Party Claims:  Who ever owns the property (or whoever has the debt) is responsible. Not liable for someone else’s debts.  
(1)	ORS 108.020 – Nonliability for other spouse’s obligations – not liable for debts incurred before M.  Not liable for separate debts incurred during M.  Rent / income of spouse not liable for separate debts (but ...) 
(2)	ORS 108.040 Family Debts are different:  Expenses of family and education of kids are chargeable upon the property of both husband and wife, or either of them, and they may be sued jointly or seperately. But after separation, a spouse is not responsible for debts contracted by the other spouse after the sep. except for depts incurred for maintanance, support, education of minor kids of the spouses. 
(a)	Considered seperated if living in separate residences w/out intention of reconcilation at the time the debt is incurred and/or considering following factors:  
(i)	Subsequent reconciliation, Number of seperations/reconciliations of the parties, Length of time parties lived apart, Whether they intend to reconcile, Whether they have filed a petitition for sep/dissolutoion
iv	Historical Common Law Scheme
(1)	W’s right to K and convey property limited
(2)	Real Property:  “Law of Coveture” – aboloished by MWPA - H legal right to administer W’s land during marriage.  If H died, W regained rights.  W gained dower (1/3 life estate in H’s lands)
(3)	Personal Property:  H owned and could do as he pleased w/ W’s personal wealth (except certain things like jewelery, clothes aka paraphenalia).  H also responsible for W debt before and during marriage. 
(4)	Gifts:  H  W transfer presumed gift.  W  H transfer treated as loans and cts often imposed equitable remedies for W’s benefit. 
v	Major Changes to CL System by MWPA
(1)	W has sole control over property held before marriage and gifts. 
(2)	Only applies to W’s property before marriage, acquired during marriage through her efforts, or given to her.  
(3)	W still has no interest in H’s separate property and W who enter into the M with nothing is in same place as before.
(4)	Debts incurred before marriage are separate debts
(5)	No effect on property titled in H but which both spouses contributed
(6)	ORS § 108.010 Repeals laws imposing civil disabilities on the W that are not on the H 
vi	Equitable remedies (W’s remedy – MWPA has no effect on prop. titled in H’s name, so W turns to these)
(1)	Constructive Trust:  Unjust enrichment by one party + Wrongdoing (fraud, duress or undue influence, breach of confidential relationship) 
(a)	If you make this claim the title owner still has title, but holds it in constructive trust for the other person, who has beneficial title (meaning you get economic benefit)
(b)	Saporta:  Ct rules constructive trust – W bought house and put it in H’s name (insecure dude). H unjustly enriched and ct says breached confidential relationship (fiduciary-like) (H arg = Gift)
(c)	Justice requires that someone other than person w/ name on title gets the land.
(d)	Lesson:  Put your name on everything to avoid going to these remedies
(e)	Murdoch – H thinks could have argued breach of confidential relationship. 
(2)	Resulting Trust: Words or conduct indicates a common intention that party w/out title would have a beneficial interest in the property.  
(a)	B/t spouses, there is a presumption of a gift – can be rebutted (other person will argue resulting trust)  Old rule – gendered. H  W presumed gift. This was abolished b/c of equal protection.   
(b)	You don’t get this remedy unless you put $$ in (and housekeeping doesn’t count)
(c)	Murdoch:  H presumptively owns ranch b/c title in his name – W did chores but contributed no $. Ct says no intention so no resulting trust.  Pay = Labor in marketplace. 
(i)	Dissent:  W labor should = $ since it was ranch work and not just housework. (sweat equity)
(3)	Gifts:  Sometimes problem (i.e., Saporta) b/c person putting title in other’s name doesn’t mean it
(a)	Recipient of gift has legal and beneficial title
(b)	B/t spouses, presumption of gift – can be rebutted (see above)
(c)	Ex:  A owns a house and marries B, changes title to joint tenancy – Presumption this is a gift b/t spouses. 
(4)	Quantum Meruit:  Fair market value for labor

c	Community Property System WA, CA, ID, NM, WI, TX, LO -- Spanish/French influence
i	50/50 ownership by each spouse for prop acquired through the labor of either one of them during marriage; but, premarital weath, gifts, and inheritances remain separate.  Prop can either be W’s, H’s, or community’s.    
ii	Principles guiding ownership:  H&W own a substantial portion or even all of their property jointly unless they have expressly agreed to hold it seperately – Nine US states, inc. WA & CA. 
iii	Control and management: H had sole control of all property until 70s – revision of statutes. Three new systems of mngmt developed:
(1)	Joint management: Spouses make joint decisions re: community wealth.  Prof. Oldham- This could burden commerce. 
(2)	Sole management:  Power allocated to one spouse or the other – sole power to manage particular community assets; i.e., a spouse may have sole authority to manage his/her earnings. Oldham – if not accumulating the same then power is not the same. 
(3)	Equal Management:  Authorizes either spouse, acting alone, to manage the community property. Oldham – Gives dominant spouse de facto control.  
iv	Third Party Claims
(1)	Whether community property can be taken for separate debts depends on whether the debts are classified as community.  This also depends on the state you’re in.  
v	Uniform Marital Property Act – Approved by the bar in 1984 but only adopted by one state (WI). Embraces community property principles.  

d	Marital Rights for Other Property (The New Property)
i	Phrase coined by Charles Reich:  Rights and statuses other than tangible goods: including employment security, social insurance benefits, insurance and various health and welfare interests. 
ii	ALWAYS look for the statutory law and implementing regulations
iii	ERISA:  Federal regulatory scheme interwoven w/ tax stuff that governs all pension plans – Does not govern government employees or small employers. Only covers benefit plans established by employers who are engaged in or affect interstate commerce. 
(1)	General Terminology
(a)	Tax insentive to take money later created by high taxes on lump sum payment
(b)	Annuity payments – monthly payments: 
(i)	Single life (one beneficiary) – when people died under this, they left a destitute spouse.
(ii)	Joint and Survivor (two beneficiaries – generally spouses) – ERISA requires j&s – surviving spouse’s annuity can’t be less than 50% of the annuity which is payable during the joint lives of participand and spouse.  [The other 50%, deceased spouse’s share, may be left to beneficiary in will]
(c)	Participant = Employee of former employee of employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit
(d)	Beneficiary = Person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder. 
(i)	May become beneficiary by virtue of QDRO  QDROs are exempt from the pension plan anti-alienation provision + ERISA’s general preemption clause.  This comes in at divorce to make pension plan alienable. 
(2)	Pension rights goverened by ERISA are NOT alienable and courts treat dividing pension rights as property at divorce as an impermissible alienation.  Boggs v Boggs - Pension case – fight b/t second wife and kids of first marriage. Ct held that ERISA trumped state law (LO CP and successtion laws that recognized son’s rights).  Wife 1 (who died) tried to transfer her interest to sons – this is prohibited assignment or alienation.
(a)	Main purpose of the antialienation clause is to protect the pension from creditors.  Social policy – seeking stability in retirement funds.  
(b)	ERISA also provides protection for spouse – says that if employee retires and is married, has to choose J&S way to take benefits unless the spouse voluntarily signs off on Single Life plan
(c)	Also provides protection for beneficiary from own improvidence – Spendthrift Trust – Can’t alienate trust at all before retirement. 
iv	ANALYSIS for state law conflicting with federal law:
(1)	Examine the statutory law and implementing regulations
(2)	Try to read the two laws (state and fed) as being consistent w/ one another
(a)	This is what the TC in Boggs does – kids win at TC level. 
(3)	If there is an express preemption in the federal law, this is conclusive b/c of the Supremacy Clause
(4)	If not ask:
(a)	What is the purpose of the fed statute?
(i)	ERISA: protect surviving spouse
(b)	Does the state law conflict with the purpose of the federal statute?
(i)	Boggs – if recognized CP interest of sons, it would lessen benefits surviving spouse gets – so it’s inconsistant w/ the purpose of the federal statue. 

2	Daily Management of Property and Support Duties During Marriage
a	SUE to enforce spousal support duty
i	Spouses Not Living Together
(1)	whether divorced or not, then spouse can sue.  Earl v Earl- H sent W away, supported her for a while and then quit
(2)	Septuagenarian:  The spouse in institution (nursing home) has a duty to wife and that amount should be enough to continue modest lafesyle rather than a life of grinding poverty. 
ii	Spouses Living Together
(1)	If spouses are living together, in the “intact household” H has duty to support, but W can’t sue
(2)	Spouses left to work out their roles and support for eachother w/in the marriage so long as it is functioning- court hesitant to interfere w/ family unit (McGuire). 
b	INVOKE NECESSARIES DOCTRINE (Equitable Remedy for creditor + articulation of support duty)
i	Elements
(1)	Marriage intact – no forfeiture of the right to be supported
(2)	The creditor must show that it supplied the W w/ a necessary item
(a)	“Necessary” determined by family lifestyle test.  Ex: Couch in Buckstaff 
(3)	D has failed to provide this item (This is an affirmative defense for the H – used to be an element of the creditor’s case in chief)
(4)	THIS IS NOT A CONSENT-BASED THEORY – The doctrine is imposed as a matter of law b/c of marital relationship. 	
(a)	Mr. Buckstaff planned to revoke credit, but this doesn’t work. An agent-like relationship can exist into the future based on past pattern of paying.  Can’t revoke. 
ii	Remedy – Receive fair market value. 
iii	This has been abolished in some jxs – Used most often for medical care. H will arg that doctrine should be abolished. 
c	ORS 108.040 –Family expenses statute – close to necessaries doctrine. Both husband and wife are liable for family expenses and expenses of the kids. 
i	This does not provide a c/a for a spouse to sue the other.  Provides a c/a for people outside the relationship to sue. 
ii	Tricky part of this provision is whether you are seperated or not:
(1)	Subsequent reconciliation, Number of seperations/reconciliations of the parties, Length of time parties lived apart, Whether they intend to reconcile, Whether they have filed a petitition for sep/dissolutoion
d	Necessary vs. Family expense:  Family expense probably a little broader.  
i	Necessary -  Determined by family lifestyle test. In Buckstaff, the family’s socio economic standing justified finding the sofa necessary.
ii	Nec – often used for medical care.  If abolished, would cause some real problems. 
e	Four schemes for ordering the liability of spouses for necessaries:
i	CL:  H is liable for both his debts and those debts incurred by W
ii	Buckstaff:  H primarily liable for necessaries and the W is only secondarily liable – Creditor can go after W only after attempts to get $ from H are unsuccessful
iii	Miss:  J&S liability – creditor can sue either spouse from the get go
iv	Creditor should first recover from the spouse incurring the debt and then other spouse is secondarily liable.   

f	New Property and Support Duty (Tension b/t benefits and property)
i	Medicare:  Does not pay for long-term nursing home care – have to pay for it yourself, or sell everything to get poor and go on Medicaide.
ii	Medicaide:  Does pay, but it’s a program for impoverished people.  
(1)	Institutionalized spouse:  Person who is applicant – has to disclose assets.
(2)	Community spouse:  Married to institutionalized spouse.  (Married – has support duty) This spouse only gets what’s necessary to keep living at modest level (150% above poverty line)
(a)	Q – How does this interact w/ claim for public assistance and support? 
(i)	Institutionalized spouse has to say the community spouse’s income and a certain amount of community spouse’s income may be deemed to be viable.  Add up this amount and inst. spouses value and see if eligible.  
iii	Cases where institutionalized spouse has money and community spouse does not:
(1)	Could argue under Earl that family no longer intact – sue for spousal support. 
(2)	Issue = When public benefits law establishes a level of support, can you overcome this w/ CL? This tension b/t calling them benefits and calling them property comes up over and over.
(a)	Septugenarian: YES H living seperately in nursing home – gets medicaide and monthly pension. W sues for support b/c allotment under Code is insufficient for her lifestyle.  Ct recognizes that granting W/s request will increase costs to the system, but held that depriving W of J&S share in H’s pension would be overly harsh.  Pension represents deferred compensation (property), is an asset of marriage, and both should enjoy it 
(b)	Gomprecht:  NO Opposite conclusion w/ct ruling that purpose of federal provision is to end pauperization of spouse by assuring her sufficient, but not excessive,  income.  Says amount set in code is always amount W is allowed – if want to participate, must agree to the amount of $ the code allows.  More like support rather than property. 
iv	Cases where community spouse has $ and institutionalized spouse does not
(a)	MAJ Jx:  Spouses incomes are pooled together and they apply for benefits as a unit.  But since 1988 when qualifications are considered for nursing home purposes, only the institutionalized spouse can qualify even thought the other one is a millionaire.  (AARP BILL)

3	Contracts between Spouses and Spouses-to-be
a	Three major things to look for in all marital contracts
i	Formalities:  
(1)	Consideration – Ks involving one spouse providing support fo another may lack consideration b/c of the preexisting duty rule – Borelli v. Brusseau
(2)	Agreement in writing – Premarital Ks must be in writing to be enforced, but other family Ks do not.
ii	Substance: Certain areas of family relation area are off limits.  Prenup and mid marriage agreements affecting the property rights of each spouse may be enforced. 
(1)	Cts won’t enforce Ks on child custody (unless the agreement provides for more support than background law would)
(2)	Cts won’t enforce Ks affecting the rights of 2rd parties such as creditors
(3)	Or K waiving spousal support duties or agreeing to get a divorce if X happens. 
iii	Process (bargaining)
(1)	Requirements of independent attorneys, whether full disclosure of assets is required, and whether duress/fraud is involved, also voluntariness
b	Contracts made during marriage generally NOT enforceable at CL
i	Myth of family unity
ii	H has power so can’t be bound by W
iii	all W’s property became H’s so ct could not seize anything to enforce ruling
iv	Modern rationale: The parties never intended to sue about the K and are instead judges, sheriffs, and advocates for the marital K.  Balfour – burden on P to show that the promise was intended to carry legal consequenses
c	Contract b/t married spouses where one agrees to provide care for the other may be unenforceable under the pre-existing duty rule. 
i	Borelli v Brusseau: W ps to provide health care for dying H and H ps to leave W assets in will. W fulfills p and H does not.  Ct holds pre-existing duty so agreement lacks consideration – “antithetical to the institution of marriage. 
d	Mid-marriage agreements altering the rights and duties of the spouses to eachother will be closely scrutinized for duress and also must be fair and just to be enforceable
i	Pacelli: Midmarriage Ks treated differently than pre and post Ks b/c the context of midmarriage agreements such as this are “inherently more coercive.”  Ct holds terms not fair and just.  H gives consideration of not leaving her. 
ii	Duress:  Threats have to be improper. 
(1)	In Pacelli W had nationally regarded lawyer but still found duress.  Also could argue cultural factors. 
e	Pre-Marital Agreements
i	Very common – used mostly be people entering into their second marriage. 
ii	Today: No longer contrary to public policy to address what might happen at divorce 
(1)	CANNOT contract to get a divorce 
(2)	CANNOT contract re: custody and support of children 
(a)	unless K provides better for the kids, like support duty during college – court may enforce b/c in kids’ best interest
(3)	CAN Contract for elimination of spousal support
(a)	UPAA – Can pretty much K for anything unless spouse would be then up for welfare benefits (in that case court may require other party to provide support)
(b)	Traditionally, could not contract around support duties. 
(4)	Contracting for not having kids is legally dubious
(5)	Contracting for not having kids is legally dubious
(a)	NY Times Article:  Trophy wives agree, but often regret and may lead to divorce.  Unequal bargaining power, may violate public policy and notion that part of M is having kids. 
iii	Sanders – Clause that you loose all property if you try to get a divorce w/out showing fault.
iv	Bargaining Process:  Simeone says a K is a K – the UPPA says the same thing – The K is enforceable unless you can prove under §6 that the K was not voluntary or was unconsionable when it was executed AND there was no disclosure, no opportunity for disclosure, and no knowledge of assets. 
(1)	But as lawyer, never present a bride w/ a prenup on her wedding night. 
v	Bonds: No presumption of involuntary where there is no lawyer. Court interprets voluntariness as a knowing waiver of rights requireing knowledge, disclosure and knowing what you are giving up. 
(1)	ALI:  hybrid b/t UPPA and RS – intermediate position that says you have to have informed consent.  If there is no lawyer, there has to be clear language. 
(2)	OR:  Has UPPA but no case law  

4	Domestic Violence
a	Two Civil “Remedies”  Victim can get these ex parte
i	FAPA – Family Abuse Prevention Act, ORS 107.700
(1)	Definition (107.705) includes family and non family members:  Spouses, former spouses, adult persons related by blood, marriage or adoption, persons who are cohabitating or who have cohabitated together, persons who have been involved in a sex. intimate relationship w/ e/o w/in 2 years immediately preceeding the filing by one of them . . ., unmarried parents of a minor child.
(a)	People under 18 can get one if they are a current/past spouse, they have been in sex. intimate relationship AND the respondant is 18+. 
(2)	Elements (107.710)d
(a)	Have to be a victim of abuse w/in the preceding 180 days
(i)	But – any time during which abuser is incarcerated or living 100ms away does not count as part of 180 days. 
(b)	Person has to feel in imminent danger of further abuse from the abuser.
(c)	Respondant represents a credible threat to the physical safety of the petitioner or the pet’s kid 
(d)	Petitioner has burden of proof  If shows elements, relief lasts one year. 
(3)	Relief:
(a)	temporary custody (if contested, hearing has to be w/in 5 days)
(b)	require party to move out if title jointly held
(c)	assess attny fees
(d)	stop respondant from coming w/in reasonable distance
(e)	. . . See p 41 supp 107.718
(f)	The other parent virtually always gets parenting time – can ask to have exchange in safe place
(4)	Renewal:  May renew upon finding person would reasonably fear further acts of abuse by the respondant
ii	Civil Stalking Protective Orders, ORS 30.866 (These DO NOT REQUIRE RELATIONSHIP or fear of personal violence)
(1)	A person may bring against a person if:
(a)	The person intentionally, knowingly, or recklessly engages in repeated and unwanted contact w/ other person or a member of that person’s immediate familty or household thereby alarming or corercing the other person
(b)	Objectively reasonable to be alarmed/coerced
(c)	Contact causes victim reasonable apprehension
(2)	P may recover damages (inc. for emotional distress), punies, attny fees
(3)	Action must be commenced w/in 2 years of conduct giving rise to claim
(4)	Must be shown by preponderance of evidence
b	Criminal Remedies:  Criminal stalking statute – 163.730 (definitions) and 163.732
i	Person knowingly alarms/coerces another person or member of person’s immediate family or household by engaging in repeated and unwanted contact
ii	It is objectively reasonable for a person in victim’s situ to have been alarmed or coerced
iii	Causes reasonable apprehension re: personal safety 
iv	This is a class A misdemeanor or a class C felony if person has prior stalking related conviction. 
c	Possible arguments against stalking statutes:
i	Free speech (abortion protestors)
ii	Vagueness – don’t know what you can’t do Delgado court found not unconst. vague. 

5	Equal Protection
a	Find the Basis for Classification:
i	Has to be some gov (state/fed) law, action, statute, admin. rule, executive decision, judicial action that limits someone’s rights and does so critically by classifying people into two or more categories and treating them differently based on this classification.
(1)	Domestic Violence:  State action is policy policy of not arresting
b	What is the level of Scrutiny?
i	Rational Basis: Is this classification rationally related to a legitimate state goal? – Highly deferential to the government.  DV analyzed here. 
ii	Intermediate:  Is this classification substantailly related to achieving and important state goal? – Gender
(1)	DV – Could make argument that it is gender based, but since it is gender neutral on face, have to show disperate impact + that government was using policy as a proxy for gender discrimination.
(2)	Difficulties b/c stats show women hit men as much as men hit women. 
iii	Strict:  Is this regulation necessary in achieving a compelling state goal? - Race
c	Legitimacy Analysis
i	Is the government’s reason for the classification and treatment legitimate?  Two piece anaylsis:
(1)	What is the state goal? 
(a)	What are they trying to accomplish?
(b)	Is that a legitamate reason?
(2)	Is the means to accomplish the goal sufficiciently closely related to be Constitutional? 
(a)	The level of scrutiny is about how skeptical/deferential you will be toward government. 
d	Ex Restrictions on Marriage: Zablocki:  Wisconsin law says you can’t get married if have a child on welfare.  State goal is getting kids supported, but the means are not substantially related to the ends. 
i	Classification:  People w/ children who are on support v. everyone else.  Not a basis for heightening scrutiny.  Argue disguise for gender bias to bump up to intermediate?  Most people paying child support are men – argue disperate impact.  Is intention to systematically disadvantage men over women?
ii	State goal:  Getting kids supported
iii	Means to ends anaylsys:  Problem here.  Don’t have to be married to have kids.
iv	note can do analysis under subtantive due process or equal protection – important part is determining level of scrutiny
e	Issues may be raised if go to courthouse and they deny license, or if want a divorce and lawyer says not married in the first place (judicial declaration that marriage not valid) or by collateral attack.

6	MARRIAGE AND ITS ALTERNATIVES
a	Marriage Elements:
i	Process – Formalities: Statutory – vary by jx. 
(1)	OR 106.010 – 106.045 – Fee, 3 day waiting period
(2)	Formalities:  Typically obtaining a license, paying a fee, waiting a minimum period set out in the statute, and participating in a ceremony. Statutes may prescribe who may officiate and what form the ceremony must take. 
(3)	Mock priest rule:  If either of the spouses believed in good faith that the person was authorized to do the M, then there is an M. (Expectations, religious concerns)
(4)	Marrying Sam:  Old people want to marry but don’t want to loose their pension benefits. People do not have license.  
(a)	Directory/Mandatory arguments:  
(i)	If rule is directory, can argue they are married. The more time has passed, the more likely court will find its directory. 
(ii)	If rule is mandatory, argue they are not married.  If in favor of M, argue directory.
(iii)	 Kids who want benies would argue mandatory – no licence – need this for records + notice. 
(5)	Lyle Menendez:  Getting hitched by proxy – had lawyer stand in for him.  May have to show up. 
ii	Intent/Consent
(1)	Joke Marriage:  Old cases deny annulments in these cases. Modern cases tend to grant them b/c court says lack of intent to marry means there is no valid marriage.  Darva Conger falls into this category.
(2)	Limited Purpose Marriage:  Only intend to obtain some legal beiefit of being married w/out actually taking on the rights and duties of M
(a)	Lutwak: INS case – Sup Ct takes tradn’l view of what it means to be married.  Immigration authorities may refuse to recognize M
(b)	Current law: Alien gets conditional immigration status, with bona fides and continuance of the M to be reexamined after 2 yrs.
(3)	Fraud/Duress:  
(a)	Traditional rule is that fruad/duress have to be extreme – go to “the essentials of marriage.” Duress examples: Force, threats.  Fraud: only essentials of marriage like willingness to have sex/kids.  
(b)	Modern – expand concept of what misrepresenations are enough, but false reps of financial status typically not enough.  
(c)	NY Liberal fraud def. from Wolfe: if this particular person can not live this M, then it’s fraud (W said she had never been married, H was Catholic). 
iii	Substantive Restrictions:  
(1)	Competance to marry at all
(a)	Mental illness/retardation:  All jxs have this restriction whether by statute or CL. Clear Const issue here.  Test:
(i)	MAJ: Whether a person can understand the meaning of marriage.  In practice, what a person must understand is minimal b/c belief that mentally disabled people ought to be able to have benefits of M. Edmunds  - Man had capacity to marry even though mildly retarded, property managed by conservator, and he didn’t understand idea of alimony – but understood that M was for life etc
(ii)	MIN: Must have capacity to enter into a business k b/c of financial implications of M.  Knight 
(b)	Bigamy/Polygamy:  Rural Utah still have polygamy
(i)	Policy reasons for banning polygamy:  Tradition, gov scared of compounds, welfare issues w/ lots of kids, system oppressive of women, economic problems (one earner), “not enough women to go around”
(ii)	But Americans practice “serial monogomy”
(iii)	Defense to Bigamy:
1.	ENOCH ARDEN rules:  Defense to criminal bigamy charge – If, at the time of second wedding, the D believes that the first spouse is dead and if the spouse has been absent w/out explanation for a set period of time, and if the circs justify the belief that the spouse was dead, the D is not guilty. BUT – this doesn’t mean the second marriage is valid. 
(iv)	Newspaper articles:  Polygamist PD – 20 kids, try to get him w/ underage sex. Kids neglected. D wants custody. Ct cites best interests of kids = when religion gets in the way (see also, under custody issues) 
(c)	Age: CL boundaries 12 for girls, 14 for boys. 
(i)	ORS 106.030: Minimum age is 17, but under 106.060 need parental consent if under 18
1.	Ex: Two 16 yos get married:
2.	If before turning 17 one sues for annulment, it would be granted under 107.015/106.030
3.	If they continue to live together until after 18, under 107.015 likely they have ratified their marriage, no annullment
4.	If they live together past 17 and sue for annulment before 18, outcome unclear: Some courts grand anulment, some don’t depending on how important parental consent is. 
(ii)	Sometimes there is an exception if girl is preggo.
(2)	Eligibility to marry this person
(a)	Relationship 
(i)	Consanguinity: No marriage b/t people related by blood – Cultural and genetic.  In US, variation b/t jxs re: first cousins.   Also prevents kids from seeing child relatives as appropriate sex partners – same w/ affinity. 
(ii)	Affinity:  No marriage b/t people related by marriage. 
(iii)	ORS 106.020 No M b/t first cousins or nearer kin. 
(b)	Gender/Sex
(i)	Analysis:
1.	Look for the classification
2.	If gender based, use intermediate standard
3.	If just “heterosexual” v. “homosexual” it’s rational basis
4.	Look for the gov purpose and how strong it is
(ii)	Baker v VT – Relies on common benefits clause of the VT const. State wants the law to recognize a link b/t making a baby and raising kids. Even though court uses reasonble language, they are really using a strict standard – have to look at what the court is doing. 
1.	Standard – SS or Rationally related
2.	Baehr v. Lewen: talks about EP so more important for other states. Challengers want to crank up to SS or at least intermediate. In HA, gender-based discrimination not allowed b/c they have an equal rights amendment.   The state in Baehr argued that it was not a gender based classification by analogizing to Loving v. Va. 
3.	HA leg reacted to Baehr by passing law establishing rights for “reciprocal beneficiaries.” Indicated that law limiting M to same sex couples is subject to SS.
4.	H thinks not gender based b/c law treates men and women equally (but this is the same, unsuccessful arg from Loving v Va)
(iii)	VT Civil Union Solution:  Creates status that has same rights and duties of M w/out being called M. 
(iv)	Canada: Halpern v. CA – nuanced discussion
b	Choice of Law
i	Generally:  M that is valid where it is entered into is valid everywhere, subject to limitation that if recognition of M as valid would violate a strong public policy of the state asked to recognize the M, the state would not do so [Note, does not apply to recognizing international M’s like from the Netherlands]
(1)	In re May – NY had law against half-blood M but statute did not positively say that it wouldn’t recognize halfblood M - Need a positive law to demonstrate strong public policy of state.
(2)	Catalano – M b/t uncle and neice void b/c of insestuousness – Were married in Italy. 
ii	Argument for recognition is based on the full faith and credit clause.
iii	W/ Same sex M  State may sidestep recognizing VT’s civil union by saying “it’s not a marriage – it’s something else”
iv	Ex:  Some states might refuse to recognize as valid a polygamous M entered into in Muslim country but under some circs may recognize:  Dalip Singh Bir’s Estate- 2 wives both got rights to estate.  
c	Challenging the Validity of a Marriage
i	Annulment:  Judicial declaration that a marriage is not valid b/c the parties were not eligible to marry when they purported to marry or b/c they failed to comply w/ some procedural requirement. 
(1)	OR Law:
(a)	107.015: Grounds – may be decreed for following causes:
(i)	When either party to the M was incapable of making such K or consetnting thereto for want of legal age or sufficient understanding
(ii)	When constent of either party obtained by force/fraud 
(b)	107.075: Residency requirements – parties have to be in OR 6mos before they can get annullment
(c)	Standing: One of the spouses. Sometimes parent of minor or the representative or mentall incapacitated adulrt
(d)	Effects of Annulment: Children are legitimate. Same property division as divorce. 
(2)	May come about through collateral attack – i.e., challenges to distribution of assets when someone dies
ii	Collateral Attacks: 
(1)	One spouse sues the other for divorce, the other says never validly married
(2)	Probate of estate, decdant’s “surviving spouse”: claims righsts of spouse and heirs claim spouse not entitled to rights b/c no valid marriage
(3)	If clerk refuses to issue licence the parties can challence the action by filing mandamus petition or dec. judge suit.
iii	Void Marriage: M never had legal effect even w/out a judicial declaration of invalidity
(1)	While this sounds more strict than “voidable” marriage, the distinction sometimes gets confused.  Court may say that marriage is OK if 2 13yos were married 25 years ago and are still married
(2)	ORS 106.020:  Polygamy and Marrying blood relatives
iv	Voidable Marriage: Legally effective until declared invalid by a court
(1)	ORS 106.030:  When either party to a M is incapable of making such contract or consenting thereto for want of legal age or sufficient understanding, or when the consent of either party is obtained by force or fraud, such marriage shall be void from the time it is so declared by decree of a court having jx thereof. 
d	Common Law Marriage and Related Doctrines
i	CL Marriage
(1)	Generally:  Most states do not recognize CL marriage, but if you have a valid CL M, you are married just the same as if you went through a ceremony (so you have to get a real divorce – no such thing as CL div). This is just a way of getting around the formalities. UT recognizes
(2)	Elements
(a)	Present intent to marry
(b)	Cohabitation
(c)	“Holding out” requirement
(d)	Argue what factors cut in favor of CL M and what factors cut against. 
(3)	Wineguard: Very ambiguous behavior – court finds they are married, even though the story (saying they are CL married when flying over a CL state) is fishy. Guy is fighting b/c does not want to pay spousal support. 
(4)	Dave Winfield
(5)	Choice of Law:  States are all over the place on this. 
(a)	Some states will recognize CL M from other state only if the couple was domiciled in that state. 
(b)	Other jxs recognize CL M occuring in another state providing people had substantial connections w/ that state – vacation home etc.  
(c)	Other jxs say driving through a state, spending the night in hotel as Mr. and Mrs. Smith is enough (like NY – very liberal)
ii	Putative Spouse Doctrine (Not every state recognizes this - 
(1)	Generally: One whose M is legally invalid but who has engaged in
(a)	a marriage ceremony or solemnization, on the
(b)	good faith belief in the validity of the M
(2)	Theory: P spouse is entitled to share of property accumulated by the family unit during its existance.
(3)	Presumptions (competing presumptions leads to conflict)
(a)	Most recent presumed valid
(b)	Marriage entered into continues
(4)	Spearman analysis (CA) * Spearman wife 2 loses b/c court finds no good faith belief
(a)	Presumption arises in favor of the validity of the 2nd M
(b)	To rebut presumption, 1st spouse has to examine records of only those jxs in which either she or her husband has been domiciled. 
(c)	If shows M certificate, burden shifts to 2nd wife.
(d)	If 2nd wife can’t show dissolution, 1st wife is lawful widow.
(5)	If prove putative spouse, then treated as married for property rights – opens up possibility that two ore more people have spousal rights
(6)	Attenuated doctrine:  putative CL spouse. 

e	Unmarried Cohabitants
i	Marvin Remedies (MAJ):  Legal constructs that create rights/ duties where people are not married. These can be used in states that don’t recognize CL marriage.  Marvin “severs” the sexual relationship
(1)	Generally:  Starting place is assuming the nature of the relatinoship of the cohabs is two individuals living in same space – have to go forward and prove the theories. 
(2)	Try to get her married  Does the state recognize CL marriage? Then move onto these remedies:
(3)	Contract
(a)	Express Contract:  Offer/Accpetance/Consideration.  Noone actually wins if this is litigated b/c it comes down to he said she said. Also, one requirement of K is that remedy is definite enough so court knows what relief to give. 
(b)	Implied Contract:  Court looks to party’s behavior to try to find implicit agreement to cohabitate and have X support Y. 
(i)	Ex: If the implied agreement was to share a life together as if married, then the remedy is at divorce, property is shared. 
(c)	Partnership/Joint Venture (express/implied):  When bus. partnership ends, parties take what they brought into the partnership and everything else is split evenly. 
(4)	Equitable
(a)	Quantum Meruit: Fair compensation for services rendered – fair market value
(i)	Have to show services were provided under circs where it’s obvious they weren’t being provided for free (i.e., moms cant get paid for taking care of kids)
(ii)	Man will arg. already paid her by supporting her during relationship
(iii)	Marvin states: “nonmarital partner may recover in q.m. for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services w/ the expectation of monetary reward.”
(b)	Constructive Trust: Unjust enrichment by one party + fraud, duress, or undue influence, breach of confidential relationship – The person has to do some wrongdoing.
(c)	Resulting Trust:  Words or conduct indicates a common intention that party w/out title would have a beneficial interest in the property.  You don’t get this remedy unless you put $$ in, and housekeeping doesn’t count. 
ii	Counter Arg to Marvin:  Hewitt (MIN)– Stay at home mom and foot doctor.  Rights created in Marvin will weaken M as a foundation of family based society – it’s naïve to believe that K is separate and independent from sexual activity. They are unenforceable as against public policy. 
iii	Meritricious Relationship -  Only WA Treats unmarried cohabs just as if you got a divorce as long as you can prove that you had a meritricious relationship Connell v Fransisco.  Equitable distribution of CP acquired during M.
(1)	Meritricious relationship = Stable, marital-like relationship where cohabitants knowingly not validly married.  Factors:  Continuous cohabitation, duration, purpose, pooling resources and services, intent
(2)	Once Meritricious held to exist:  Evaluate each person’s interest in property gained during relationship 2. Make equitable distribution of what would have been CP; but can’t touch separate property including property from before the relationship.  Rebuttable presumption that property obtained during M is community and subject to equitable distribution. 
(3)	TO claim relief under maritricious relationship, parties have to be eligible to be married.
(a)	Pennington – No meretricious relationship where parties had spouse for part of the time they were living together (on again off again relationships)
(b)	Vasquez – equitable claims must be analyzed under the specific facts presented in each case. In relationship that is comlicated and contested, the determination of which equitable theories apply should not be decided by court on summary judgment. 
iv	OR – Shuraleff walks like a duck talks like a duck is a duck:  Rights and duties of cohabitants based on the intent of the parties, not equitable concerns.  Ct basically decides implied in fact K from the “domestic” and “symbiotic” conduct of the parties – implied agreement to live as if married so property equitably distributed at divorce. 
(1)	OR/WA – Once show agreement to enter into relationship than most fam law consequences ensue for property division. 
v	ALI Principles
(1)	Rejects K-based approach that underlies Marvin and favors applying fam law principles to cohabs as their relationship more closely resembles a M. 
(2)	§ 6.03: 2 persons of same/opposite sex regarded as domestic partners if they share a primary res and life together for significant period of time
(3)	Time for presumption for dom. partners is shorter if couple has a kid. 
(4)	Dom partners subject to prop division and spousal support provisions applicable when M’d couples divorce
vi	COHABITANTS RIGHTS AND DUTIES TO THIRD PARTIES
(1)	ORS § 656.226 – If unmarried man and woman living together for at least a year and have kids, should man have work accident, surviving cohabitant gets compensation as if they were married. 
(2)	OHS v. Tanner:  Governer issued order extending employee benefits to domestic partners after ct holds doing otherwise violated state constitution. 
(3)	Key when determining rights of unmarried cohabs against third parties is to examine the statutory language and argue that it allows unmarried person to receive benefits/rights as if were married – Good arg if wording covers “family” or “dependent” but harder if “spouse” or “parent.” 
(a)	Braschi – Same sex couple in rent controlled apt – One dies and LL wants to kick the other out since not “family” Ct adopts functional rather than legal family standard under NYC rent control code (not nec limited to same sex)
(i)	Functional Family includes 2 adult partners w/ long term relationship characterized by emotional and financial commitment and interdependnecne
(ii)	Factors:  Objective examination of relationship looking at exclusivity, longevity,  emotional/financial commitment, manner conducted everyday lives by holding out and relying on eachother. 
vii	Domestic Partnership Legislation
(1)	Public Recognition:  San Fransisco Admin. Code:
(a)	 2 adults, sharing lives, intimate, committed, cohabs agree to joint responsibility, ceremony (sign certif), not married, not related, no prior domestic partner for last 6 mos.  
(b)	Doesn’t give much of anything except public rec. of relationship
(c)	Nothing to third parties
(d)	B/t parties get support duty
(2)	OR PEBB (Pub Emp’ee Ben. Board) Affidavit of Domestic Partnership: Adopted by admin rule
(a)	Applies only to public employees.
(b)	Can’t get married, adult, no other partner, no bigamy
(c)	Don’t have to live together
(d)	Allows partner to receive benefits if all conditions of affidavit are satisfied
(e)	Gives rights to third parties 
(f)	Standing for wrongful death suits
(3)	Hawaii Reciprocal Beneficiaries Legislation:  Statewide applicability! 
(a)	Adult, close personal relationship and responsible for welfare of e/o, sole partners, not married, no partner for last 6 mos, not related, live together for 6 mos
7	DIVORCE
a	Grounds
i	Generally:  
(1)	Don’t matter legally b/c in most places no fault is unilateral – Law is state by state.  
(2)	Exception:  Covenant Divorce laws (3 states in So.) – If you want fault-based you can enter into this – may require mandatory seperation period before divorce granted. 
ii	Fault
(1)	Historically, this was granted by churches. Could grant legal sep, where you get permission to live seperately, or annulment, where there is some impediment to the M in the first place (spouses related). 
(2)	Most important fault grounds:
(a)	Adultery:  Voluntary sexual intercourse by a married person w/ someone other than your spouse.
(i)	Proof:  People could collude to mnfr evidence – in NY until mid 80s, adultery was the only ground
(ii)	Opportunity:  Evidence re: substantial time alone w/ another persoin
(iii)	Inclination: Ev of affection b/t the people
(b)	Cruelty: Physical cruelty of such severity that it made the M unliveable
(c)	Desertion/Abandonment: Voluntary seperation w/out consent of the other w/ the intent that the seperation be permanent. Time requirement – from 6mos to a few years. Q: whether desertion jusitified.  Expanded to include constructive desertion in cases where partner denied sex to the other
(d)	Impotence: Some states do not include a pre-existing condition as grounds
(3)	Defenses to Fault-Based Divorces
(a)	Insanity: Where actions founded on adultery and desertion
(b)	Provocation:  Other person provoked me to leave, commit adultery etc
(c)	Recrimnation: Yes I did this, but so did the other person, and solution is that nobody gets a divorce
(d)	Condonation: Yes I did something but my spouse found out and forgave me – resumption of sexual relationship. “They still slept with me”
(e)	Connivance: My spouse set me up
(f)	Collusion: Proof that parties have formed an agreement to frustrate the div. proceture by creating the appearance of marital wrongdoing – the court raises this. 
(4)	Procedure
(a)	Most cases settled not litigated.
(b)	Usually couple fighting about kids and money, not fault – If at fault, you didn’t get suppport and may not get custody. 
(5)	SD – Does not recognize “no fault.”  Professor on listserve blamed recent murder on W’s inability to get no fault divorce. Link b/t fault and violence? 
iii	No-Fault
(1)	Generally: Started in CA – Allows people to get a divorce if they want it – avoids battleground of fault.
(a)	If one spouse wants a divorce bad enough the court says this is enough – Haggerty drinking case and Desrochers (irrec. differences can be determined by the subjective state of mind of parties)
(2)	Grounds:
(a)	Incompatibility – Deep personal conflict
(b)	Irremediable Breakdown/irreconsilable differences: most common ground. 
(i)	Some jxs – didn’t specify evidence
(ii)	Others, said must be proved by living apart/cruilty, adultery or desertion
(iii)	Others said just incompatibility
(c)	Voluntary Seperation: Lived apart voluntarily for X amount of time.  In more conservative states this is the no-fault ground. (Many of these states still have fault grounds)
(i)	If someone doesn’t want to wait statutory period (ex: 2 years) then they may say fault based – much quicker
(d)	Mutual Consent: A few jxs require both parties to agree
(e)	UMDA Grounds:
(i)	§302 Lived apart for 180 days or irretrievable breakdown
(ii)	§305 Irretrievable breakdown – both agree.  Where only one agrees, ct may make finding of such meaning no reasonable prospect of reconciliation.
(f)	OR Grounds: Typical no fault unilateral divorce
(i)	Irreconilable differences leading to irremediable breakdown – ORS 107.025: jx, residential requirement.  ORS 107.036 abolishes fault-based and in pari delicto. 
(ii)	Legal Sep vs. Divorce:  Can’t get married if seperated. Still have spousal support obligations. For tax purps, treated as divorced if seperated. Very uncommon for cts to enter legal seperation orders. Only good reason is if you haven’t satisfied the residency reqs to apply for divorce (or maybe if client’s religion discourages divorce). 
(iii)	Domestic violence restraining order relating to divorce decree:  ORS § 107.722 makes clear divorce supersedes/replaces restraining order. Practically: tendency to use restraining orders as stragegic move before divorce to get the things you want. 
(g)	Summary Dissolution 107.485 “The college student divorce” – or “No harm no foul”  limited application
(i)	Can’t have minor kids
(ii)	No claims of support
(iii)	No real property
(iv)	No personal property worth more than 30k
(v)	Can’t be married more than 10 yrs
(h)	Procedure:  
(i)	107.065/107.115:  Waiting period b/t filing and trial – earliest is 90 days. Can be waived by stipulatoin. This is common as a device built into nofault grounds to be sure that M was really broken (cooling off period)
(ii)	Divorce final as soon as judge signs paper. Most states have interlocutory period b/t decree entered and when it’s final – if someone dies during appeal, divorce is final. 
b	Property Division
i	Real life analysis:
(1)	Gather property and value 
(a)	issue:  Is it property – i.e., law degrees, pensions
(2)	Where necessary, characterize assets as separate or marital 
(3)	Equitably (or in a few states, equally) divide the assets that are divisible
ii	Separate v Marital Property
(1)	Choice of Law:  The character of propery is governed by state law where it is acquired. 
(2)	Separate
(a)	ORS 107.105(f): Rebuttable presumption that both spouses have contributed equally to the acquisition of prop during the M, whether the prop is jointly or seperately held. 
(b)	Generally, statutes and case law provide the separate property includes:
(i)	propery owned by either spouse before M
(ii)	property acquired by a spouse after the M by gift or inheritance, and
(iii)	propery acquired after the M in exchange for separate prop
(c)	MAJ: Presumption that everything is going to be marital or community – then burden of proof is on person who wants to claim a separate asset. 
(i)	Start w/ presumption that it’s marital property
(ii)	Spouse will argue that it any possible separate propety was changed
(iii)	For gifts/inheritance during the M, look at the intent of the giver.
(d)	Contentious issues: 
(i)	income produced during M
(ii)	increase in value of sperate proeprty
1.	Some jxs – rents, profits are M even if you don’t want it to be comingled
2.	O’Brien says increases are separate and won’t be traced
(iii)	Comingling: separate property that has been mixed w/ M prop
1.	Tracing: Most jxs permit – can trace asset as it changes in character – sort out assets if they are mixed
2.	O’Brien – H arg’d that comingling = transmutation. Ct says “mere comingling of funds does not nec. transmute them”
(iv)	Transmutation:  assets character has been changed by vol. act of the owner
1.	Community  Voluntary can’t be done w/out agreement of both spouses
2.	Separate  Community = Vol act by owner (may argue gift)
(e)	Analysis for Increase in Value of Separate Property  
(i)	Determine the character of the principle
1.	What character did it have when it was acquired?
2.	Tracing/Transmutation?
(ii)	Determine the character of increase in value and rents and profits of SEPARATE property:  
1.	Inception of title: Used in CP states and idea used in some CL states – the character of an asset when acquired doesn’t change and passive increases go w/ the original character
a.	Active – i.e., labor on the house – during M community recieves benefit
b.	Pasive – Increases go w/ the original character (inflation)
c.	Mix of Active and Passive:  Use test that will give the greatest return increase in value:
i.	This ususally comes up when one spouse owns a business and works in it during the marriage. 
ii.	Pereira: Give fair rate of return to owner of separate property everything left over is M
iii.	Van Camp: Make sure fair wage for labor is calculated and is paid M and everything left over is Separate
2.	Source of funds:  Increases in the value of sep prop attributable to the M funds or efforts are M prop, and increases attributable to market changes are separate in some states, M in others
3.	Loosey Goosey:  O’Brien Do what’s just
(iii)	Equitable Distribution (see below)

iii	Equitable Distribution:  Three basic types of systems for property division at divorce: Main difference is the amount of discretion left to the judge (Remember, this is for equitable distribution – first segregate separate prop and M prop)  Fault is not considered in OR> 
(1)	Choice of law:  While property is characterized based on the state law where it is acquired, the state doing the divorce applied its own substantive law for property division. 
(2)	Title-Based Distribution
(a)	Courts have little to no discretion over prop division 
(b)	Governing principle: prop is awarded to the spouses as they owned it during the M:
(i)	CL:  Spouse in whose name the prop was titled gets it at divorce, subject to claims of other spouse based on the equitable ownership principles
1.	NO CL STATES TODAY RELY ON THIS
(ii)	CP:  Separate property goes to the owner and the community property is divided equally – used some in CA and NM 
(3)	Pure Equitable Distribution
(a)	Judge has discretion to divide all property of both spouses as “just and proper” or through some equivilent formula. 
(4)	Marital Property Systems
(a)	Judge gets more discretion over prop division at divorce than does a title system, but less than an equitable distribution system
(b)	This is most commonly used system
(c)	MAJ CP States: Equitable rather than equal division of community prop (+ equitable dis of separate prop under limited circs)
(d)	MAJ CL States: Most have gone to system of “Deferred marital property:” as long as the M lasts, each spouse owns and manages assets that he or she brings into or acquires during M, but when endes, assets shared as if they had been acquired in a CP state. (See OR below)
(i)	In the Matter of the Marriage of Pierson (OR) - W has an inheritance – so the court divides marital property in favor of the H – Demonstrates that contribution analysis can be overcome by need. “Property division is not a function solely of arithmetic”
(ii)	OR:  107.105(f) – Deferred Marital Property System that looks more like CP at divorce. 
1.	 Court has the authority to divide all prop as it is just and proper. 
2.	Retirement fund plan or pension or an interest therein is considered as property. 
3.	Court shall consider homemaker as contribution to acquisition of M assets
4.	Rebuttable presumption that both spouses have contributed equally to the acquisition of prop during the M, whether the prop is jointly or seperately held. 
(iii)	ORS 107.036 – Marital fault cannot be considered in dividing property.
(5)	What exactly is Equitable Distribution?  Court can look at factors listed in   
(a)	UMDA § 307 [lists factors judges can look to for equitable distribution]
(i)	Alternative A (For CL states)
1.	Ct equitably apportions b/t parties the prop and assets belonging to either or both 
a.	however and whenever acquired, 
b.	and whether the title is in the name of the H or W or both. 
c.	Ct shall consider duration of M
d.	prior Ms,  antenuptual agreement, age, health . . . income, employability . . . contribution/dissipation of each party . . . contrubution of a spouse as a homemaker or to the family unit 
2.	Note after UMDA states that most CL states divide it 
(ii)	Alternative B (For CP states)
1.	Ct shall assign each spouse’s sep prop to that spouse.  Then divide comm prop in just proportions after considering relevant factors:
a.	contribution of each spouse to the acquisition of the M prop including contribution of one spouse as a homemaker
b.	value of the porp set apart to each spouse
c.	duration of the marriage
d.	ecomomic circs of each spouse when the division of property is to become effective, including desireability of awarding the family home or the right to live in it for a reasonable period to the spouse w/ kids. 
(iii)	Provides that prop acquired by either spouse before adoption of the act remains the sep prop of that spouse. 
(b)	See also Pierson above – Court can consider need. 
iv	Choice of Law Issues
(1)	When spouses acquire property in one state but are divorced in another, choice of law problems may arise. 
(2)	Ex:  H & W(homemaker) marry and live most of lives in CL state. They own 200k in personal property, all of which was saved from H’s earnings and all of which remains titled in H’s name alone. 
(a)	If H & W retire to a PC state and divorce:  Traditional choice of law principles – the court in the CP state will apply its own law to determine what property is subject to division, but it will apply the law of the state where the property was acquired to determine whether it is community or separate property
(b)	So – 200k will be characterized as H’s separate property
(3)	To solve this, some legislatures in CP states have enacted “Quasi-Community Property” statutes, which provide that if prop would have been community property if it was acquired in the state, then it is treated as CP for purposes of prop division at divorce. 
(4)	If no statute – some states just apply the substantive law of the state in which the prop was acquired. (Problems of tracing, apportionment, ...)
(5)	CP acquisition  CL divorce:  Similar issues may arise. 
v	Dividing Debts:  
(1)	Generally
(a)	States that permit division only of marital property:  Only M debts are divisible at divorce. Separate debts are the responsibility of the spouse who incurred them. 
(b)	Each Spouse’s separate property is liable for his or her debts, and CP is liable for community debts
(c)	Ordinarily a debt is M if it was incurred for the joint benefit of the parties or in acquiring a M asset. 
(i)	Some courts say that debts incurred during seperation are M if incurred to pay family living expenses. 
(d)	Geldmeier v Geldmeier:  H comes out 5k in the hole.  H could have argued for total netting out approach and then divide 6k, 6k. Would have to sell the house to do this. 
(2)	Four Ways:
(a)	Equitable Division of All:  Relevant factors include ability to pay, which spouse was the principle financial manager or incurred the debt etc
(b)	Divide debts proportionally to division of assets:  Allocate responsibility for debts in the same proportion that assets were awarded
(c)	Total netting out:  Total value of divisible assets – Total amount of divisible debts.  Divide the remainder.  The debts are treated as negative property and are subtracted from the value of the property and what is left is distributed. 
(d)	Netting out of Specific Assets:  When asset specifically encumbered, value it at the difference b/t its market value and the debt (so it’s only acquired to the extent that it is free of debt) P. 480.
vi	The Marital Home
(1)	This was major asset in Geldmeier and could have been sold to satisfy debts but kids would have been displaced. 
(2)	Common way of dealing (Geld):  Ordering division of the house, but not requireing its immediate sale. 
(a)	Future interest in sale 
(b)	Fixed rate of interest:  The person who owns the house then has the risk.
(c)	Cotenancy:  Agree to sell and split profits. Share the risk.  Both responsible for payments/maintenance.
(3)	Other states: Don’t let courts delay sale for long period of time
(4)	If nonoccupying spouse ordered to pay half of mortgage payments, this should be qualified as spousal support or child support. 
8	Spousal Support / Alimony at Divorce
a	Three kinds of Spousal Support
i	Indefinite – ORS 107.105(d)(C) Spousal Maintenance 
(1)	as a contribution by one spouse to the support of the other for either a specified or an indefinite period
(2)	OR considers factors of duration of M, age of parties, heath of parties including physical, mental and emotional condition, standard of living established during M, earning capacity, training/employment skills, work experience, financial needs and resources of each party, tax consequences, custodial/child support responsibilities, plus any other factors the court deems just and equitable. 
ii	Rehabilitative:  After a set period of time – ORS 107.105(d)(A) Transitional
(1)	As needed for a party to attain education and training nec to allow the party to prepare for reentry into the job market or for advancement therein
(2)	OR considers facotrs of duration of M, party’s training and employment skills, party’s work experience, financial needs and resources of each party, tax consequences of each party, custodial/child support responsibilities and any other factors court deems just and equitable. 
iii	Restitiononary/Compensatory – ORS 107.105(d)(B) Compensatory
(1)	When there has been a significant financial or other contribution by one party to the education, training, vocational skilss, career or earning capacity of the other party and when an order for compensatory spousal support is otherwise just and equitable under all the circumstances. 
b	Analysis for determining Spousal Support
i	Eligibility
(1)	Factors:
(a)	Contribution – What was not fully compensated during the M (housekeeping)
(b)	Sacrifice – What did she give up (career prospects, education)
(c)	Marital fault – Can’t argue in OR. Economic fault for being a slug? Hard argument
(d)	Pay’ee arg:  Spouse did not contribute/sacrifice
ii	At what level (Need)
(1)	Tensions:
(a)	 “getting by” as in Turnerand 
(b)	maintaining marital standard of living as in LaRoque 
(2)	Alternative:  Have judge do a detailed analysis and ask for budget of spouse – then figure out what spousal support ought to be ordered in light of those facts (time intensive)
iii	For low long (Duration)
(1)	Balance duration against clean break (see below)
iv	Support for Caregiving Parent:  
(1)	UMDA – Caretaker of kids may be eligible for support though otherwise capable of self support. Usually terminates when kid reaches age of majority
c	Balance against the desire and utility of a clean break:
i	Favored by UMDA
ii	Enforcement issues:  Not paid often.  Pay’ee probably would rather get property. 
iii	Psych/Emotional Issues:  Pay’ee may not want to be dependant on former spouse. 
iv	Control Issues
v	Tax Issues:  Spousal support is a deduction from income of payor and income of recipient while property division is “incident of divorce” and does not have tax consequences. 
vi	Modifiable – Usually modified down.  Anotehr reason to prefer clean break. 
vii	If want clean break rather than spousal support payments, can give needy spouse more property during division on theory that they can live off the earnings (or principle) of prop. 
d	Payor’s Arguments
i	“Why Me?” – Emotionally loaded. 
ii	Ability to pay
iii	Elbow grease put in after M has ended should not go to pay ex. 
9	Divorce and New Property
a	Generally, this category includes pensions and other employee benefits, goodwill in small businesses, professional licenses, and educational degrees.
i	Traditionally – not considered divisible property, but as potential sources of income from which spousal support could be paid.  
ii	Modern – Lawyers argue they should be treated as property subject to division. Capacity for self support does not bar property division as it may bar spousal support: so prefereable to spouse. 
iii	If treated as property, not modifiable. Must assign a present value to them in the course of doing prop. division:
(1)	Discounted Cash Flow Method:   
(a)	Present Value = Future Value/1+interest rate
(b)	Present value – The higher the interest rate, the lower the present value. The more risky the investment is, the higher the interest rate will be. 
b	Pensions (generally, this is the most valuable asset people have after their house)
i	Generally
(1)	Think of as an asset which can be divided at divorce – either “property” or a “purple giraffe.”
(2)	Contributory:  Both employee and employer put money in
(3)	Noncontributory:  Only the employee pays, not the employer
(4)	Defined Benefit:  The amount of benefit not determined by the amount you put in, but by actuaries who try to predict what the participants are going to do. Benefit determined by number of years of service, salary.  Most common if public employee
(5)	Defined Contribution: Each employee has a separate account.  The amount you put in is defined by the pension plan document
(6)	Vested: You still have an interest if you are quit or are fired. 
(a)	Vested/Mature:  Can retire now and start drawing benefits
(b)	Vested/Not Mature:  Can’t draw full benefits until retirement age, but still have an interest in the pension. 
(7)	Unvested: If you quit or are fired it goes up in smoke
(8)	Mature:  Can touch the money b/c you have reached a certain age
(9)	Not Mature:  Can’t touch the money b/c you have not reached a certain age. 
ii	Laing:  H has pension that is partially vested and partially unvested.  It is not mature.  Should the pension be called property?  Court says b/c property division is not modifiable, the parties must come back once pension is vested. 
(1)	H argues it is a “mere expectancy” meaning not property – Contingent on something
(2)	W argue:  Contingency can still be property (i.e., contingent remainders)
iii	Pension = Contingent Future Interest
(1)	Gain loose value depending on the market
(2)	If you are not vested, loose it if you change jobs
(3)	Depending on type of pension, the amount you get depends on how long you live
(4)	Pension plan could go BR 
iv	Dividing Pensions
(1)	MAJ:  Vested and nonvested pensions should be considered property characterized as M prop, subject to division at divorce
(a)	W arg:  Non vested should be property b/c if H didn’t have pension, would have been paid more during M, leading to more savings to be divided.
(2)	MIN:  Non vested pensions are “mere expectancies” so are too speculative to be divided at divorce. 
(a)	H arg:  “mere expectancy”
(3)	Methods for Division
(a)	Can’t really divide in fractions b/c under ERISA w/out a QDRO (Boggs) b/c pension interests are not alienable so use ...
(i)	H args:  Compensation for labor done after the M
(ii)	W arg:  Additional value for something done during the M (I helped you climb up the ladder arg)
(iii)	Court may look at why the spouse is getting the benefit. 
(b)	Present Value / Offset
(i)	Ct determines present value of the emp’ee spouse’s right to receive payments from the pension in the future.  This amount awarded to employee spouse.  Non-employee spouse gets other M property in lieu of her share of the pension (thus, offsetting)
1.	This will usually be used for vested pensions b/c value can be determined + favored method b/c aids “clean break.” 
2.	Have to get an actuary to help in assigning value.
(c)	Reserved Jurisdiction
(i)	Each spouse receives a fractional share of each pension payment as it becomes due. 
1.	Depends on what is actually received. 
2.	If present value can be assigned, that system is favored b/c it provides a final resolution; but good for nonvested pensions.
3.	Court says they reserve jx until the pension is vested and then they will do offest as a lump supp payment 
(d)	QDRO
(i)	Allows for courts, once a pension is held divisible M prop, to order a payout over time directly from the plan administrator to the non-employee spouse.  
1.	Pros:  Cleaner break. Assures finality Each person becomes a beneficiary and even if emp’ee spouse dies, non employee spouse can still draw for the duration of her/his life.
2.	Retired spouse can use QDRO to pay spousal support out of plan benefist
3.	Can also start payments on the earliest date the emp’ee spouse could have retired whether or not retired. 
(ii)	Non-employee spouse basically becomes a participant in the plan
(iii)	Joint and Survivor Annuity distinguished:
1.	Provides periodic payments to the retired employee and after emp’ee death to the surviving spouse. 
2.	If emp’ee divorced before retriement, nonemp’ee spouse can retain joint and survivor annuity benefits, if the QDRO provides this. 
3.	Defined Contrbution Plan:  QDRO sets up 2 accounts, so rights of neither will be affected by other’s death
4.	Defined Benefit Plan:  If emp’ee dies before the nonemp’ee has begun to draw benefits, nonemp’ee loses rights. 
(4)	Double Dipping
(a)	If retired and living off pension, do you have to continue to pay support?
(i)	MAJ:  If you have pension and the other spouse got offsetting property, you don’t have to pay support
(ii)	W can arg that pension is property and not spousal support, but prob won’t be able to get spousal support on top since pension $ is consumable. 
(5)	Pensions earned partly during marriage and partly before marriage:
(a)	The pension must be divided into marital pension and nonmarital pension (Note, if inception of title system, H muay argue asset got character before M and all should be separate) Two ways:
(i)	Time Rule (MAJ):  Value of pension * Number of yeasr pension accrued during M / Total number years pension accrued = Marital pension
(ii)	MIN:  Present value of accrued benefits on date of M subtracted from present value of total accrued benefits at divorce = marital pension
(6)	Post divorce increases in Pension Value
(a)	Hunt:  H argues W improperly shared in post-divorce increase in pension value attributable to increase in H’s post-divorce pay raise.  Ct said was OK “post dissolution pension enhamcement must be treated identically to passibe increases such as cost of living increases
(7)	ERISA:  Federal law regulates pensions – Must be set up to comply.
(a)	Emp’ee’s interest must be inalienable (can’t be assigned, creditor can’t levy on it)
(b)	Absent QDRO, can’t divide a pension and assign a spouse 1/3 of the rights
(c)	No public employees are covered by ERISA. 
(8)	Death Benefits
(a)	Emp’ee’s survivors entitled to any kind of death benefit
(b)	This depends on the terms of the plan – Emp’ee designates who gets the benefit
(c)	To extent funds in pension were contributed by the emp’ee, there will be a death benefit
(d)	May be death benefit for emp’er contributions if they are vested.
c	Social Security
i	SS payments are not property.  Fed law provides that spouses and surviving spouses can claim SS benefits based on the record of their forme spouse – but court can’t consider in dividing proeprty and awarding support. 
ii	Can’t divide b/c intruding on the federal statutory scheme. 
d	RR Benefits:
i	SC in Hisquirdo held that anti-assignment and anti-alienation clauses intended to ensure that benefits actually reached beneficiary and treated those benefits as divisible M prop conflicts w/ that purpose – Cong later amended the act to extend benefits to W’s married at least 10 years. 
e	Civil Service Benefits: Treated as marital property (regular pensions) at divorce
f	Military Retirement:  In McCarty the SC held military retirement benefits couldn’t be treated as marital and that non-military spouses could not be awarded off set or partial share. Congress then enacted USFSPA allowing state courts to treat military pensions same as other pensions under state law if
i	Spouse was a member of the service for 10 years
ii	Former spouse’s claim can’t exceed 50% of the service member’s disposable retired or retainer pay.
g	Personal Injury Awards/ Disability Payments – Calculating these is difficutl b/c W did not put any labor toward this in marriage.  Three approaches:
i	Any such award is classified entirely as separate property
ii	MAJ:  Analytical approach evaluates purpose of the compensation to determine character – if for pain and suffering then separate – if for lost wages then marital
iii	Mechanistic approach where if the award was acquired during M, it is M prop regardless of the purpose.
10	Child Support at Divorce
a	General Considerations and Rules
i	CS owed even if parents never married
ii	Statutory authority will allow courts to force parents to pay child support
iii	Always modifiable based on change in circumstances – But not retroactively
(1)	Fed law requires this as condition for participating in welfare system.
iv	Can’t offset amount of payment b/c you paid for something for the kid
v	Courts consider child’s need and plug into a formula to caluculated support – Amount determined by the formula operates as a rebuttable presumption. 
vi	A kid can’t sue a parent he is living w/ for child support. 
vii	Necessaries docrtine:  If 3rd party provides necessary to kid, parents can be sued (Emerg med care)
viii	Fed law requires that you can initiate child support obligations up until 18yo (whereas spousal support if you don’t get it at time of divorce, you’ll never get it.)
b	Three Models
i	Flat Percent of Income Guidelines (Used in 13 States inc. WA, WI)
(1)	Child support set as a percentage of obligor income, w/ the % varying depending on the number of kids. 
(2)	Designed to be comparable to a tax in simplicity of structure and ease of applicatoin
(3)	Not adjusted for the income of the custodial parent – assumes each paretn will expend the designated proportion of income on kid, w/ custdial parent’s share spend directly.
ii	Income Shares Model (32 States inc. OR – SEE WORKSHEET B after charts in back of supp)
(1)	Based on precept that kid should receive the same proportion of parental income that would have been received if the parents lived together. Three basic steps:
(a)	Income of parents determined and added together
(b)	Obligationg is computed based on combined income of the parents. Represents the amount estimated to have been spent on kid jointly by the parents if the household were intact
(c)	Total obligation is pro-rated b/t each parent based on their proportionate shares of income. 
(d)	Ex w/ 2 kids:  H makes $1,600/mo W makes $1,200 – Total income = 2800.  Chart says obligation for 2 kids with parents earning $2,800 is $650.  Add  $150 for child care expenses and get $800 support duty.  Then multiply parental percentage of income by this amount and that is your support  H’s percentage is 57% ($1,600 of $2800).  57% of $800 support duty is $456 (REMEMBER – THIS IS REBUTTABLE). 
(2)	Results are more politically palitable b/c the W’s income is factored in. 
(3)	OR has this w/ a few quirks:  ORS 25.245: Person receiving public assistance is rebuttably presumed unable to pay to support kids – So wlefare money won’t be taken away to support kids. 
(a)	For rebuttable presumptions, judges have to make findings on the record. It is hard to rebut in this state. 
iii	Deleware Melson Formula (4 states)
(1)	Kids needs must be met before a parent can retain income beyond what is necessary for that parent’s basic support needs – So parent gets income for basic needs, until kid’s needs met, parents can’t keep any additional money. Where income covers basic needs of parents, kids entitled to share in any additional income – i.e., kid also benefits.
c	Factors
i	Child’s Needs:  
(1)	Look at what people at this income level typically spend on a kid and measure this as need. (Objective – no individual determination of what people spend) 
ii	Income:  Parent’s income
(1)	OR: Rebuttable presumption that parent can pay at least $50 a month. 
(2)	Retirement and Social Security have been considered as income. 
(3)	Income usually construed very broadly.  Peterson court says income includes:
(a)	Compensation paid to employee whether wages, salary or bonuses
(b)	Gain or profit from a business or profession (farming included)
(c)	Interest, dividends, rentals, royalties or other gain derived from investments
(4)	Out of Pocket Income - Cash in hand v. Money tied up in investments
(a)	Peterson – reinvested in truck stop.Court uses receipt/voluntary control test:
(i)	If H is not gong to receive it the court won’t consider it as income
(ii)	W would argue that the H does have the ability to control the income.
(b)	OR:  If you put money back into a business it is income – rebuttable presumption   
iii	The NEEDS OF THE CUSTODIAL PARENT ARE NOT FACTORED IN!!!
(1)	Even though money is probably intermixed and family in house will maintain similar lifestyle, cannot argue to the court that “we” or “i” need more support.
d	High Income Obligor:  Income of one or both parents is higher than the top amount of the child support scale
i	MAJ:  Refuse to extrapolate the percentages in the scale to the parents’ actual income
ii	MIN:  Guidelines do not apply – use pre-guideline law
iii	MIN:  Use top guideline amount + discretion to add amounts to reflect additional income
iv	W arg:  Use lifestyle arguments (kids don’t have lifestyles independent of parents) – Use child support to equalize household incomes. 
v	H arg:  The money is not for you it’s for the kid – why does kid deserve any more? (If has second wife, this person probably most fierce attacker of child support model that puts money into the first household)
e	Little or No Income:  
i	First determine whether additional income should be imputed to the parent on theory that he could reasonably be expected to earn more (get work!)
ii	Q of whehter to impute is similar to when support obligatoin should be reduced – look at voluntary v. involuntary reduction.
iii	Parents with very low income usually at least have to pay minimum amount - $25 to $50.
f	Independent Settlements of Child support amounts:  Most Cts say not permissible to settle for amount below the guidelines unless downward deviation otherwise justified.  Most courts say that parents may enter into enforceable Ks for more child support.
g	MEDICAL EXPENSES:
i	Federal guidelines require states to implement specific provisions addressing kids’ med expenses.
ii	Easiest way is for order that employed parent puts kid on his plan – Decide what is the best plan and what costs are to parent. 
iii	QMCSO (Qualified Medical Child Support Order)
(1)	Group health plans are required to honor
(2)	Creates or recognizes the rights of the kid to benefits from a parent’s health care plan
(3)	Should include:	
(a)	Name address of participant and address of each alternative recipient covered by order (i.e., the kid)
(b)	Reasonable description of the type of coverage to be provided by the plan, or the method by which coverage is to be determined + Period to which the order applies and plan to which order applies
(4)	So basically, the insurance co. has to pay even if the kid isn’t living w/ the owner of the plan.
h	Support for Older Children
i	Rule of thumb:  Support endes when kids reach the age of majority unless they had in fact become economically self sufficient – Then they become emancipated. Age moved to 18 in ‘70s. 
ii	Analysis:
(1)	Look at the statute!!
(a)	Childers statute said “dependent kid” not “minor” so dad had to pay tuition. 
(b)	How do you define “dependent?”
(i)	Age
(ii)	College:  In OR, have to have some assurance that kid is doing OK in school – get to look at grades.  ORS 107.108
(iii)	Childers – one who looks to another for support and maintenance and is a question of fact based on need, propsects, desires, aptitudes, abilities, disabilities, parents edx, standard of living, resources, and support would have gotten if parents together. 
(2)	 Some cts say court has inherent authority to enforce parental obligations in absence of statute
11	Modificattion and Enforcement of Support post Divorce
a	Death
i	MAJ:  Support duty terminates at death of obligor/recipient.  
ii	MIN:  A ct may order obligor’s estate to continue to pay spousal support, or the parties may agree in writing to such an extension
iii	Support obligor should have life insurance payable to support recipient. 
b	Retroactive modification generally not allowed (although some jxs allow for spousal but not for child support under federal law)
c	Traditional Rule:  Unlike property awards, spousal and child support are modifiable upon showing of substantial (or material) change in circumstances.  
i	All states now have some form of automatic review – OR is 2 years.  
ii	Big question is what counts as substantial change in circumstances
(1)	Increase in income:  Generally divorce terminates M relationship, so shouldn’t modify spousal support upwards, but does not terminate parent/kid relationship, so can increase child support. 
(2)	Foreseeability:  If change in circumstances = foreseeable, this cuts against modification. 
(a)	Ex: I’m going to retire in 6 months, I’m going to get a new job in 6 months. 
(b)	Generally not for things like the kid getting older so costs more – courts will modify for this.
(3)	Voluntary/Involuntary Decreases in Payor’s Income
(a)	Deegan (case is spousal support, but tests can be applied to child support payments as well)– 
(i)	Balancing test (Deegan adopts) – whether the advantage to the retiring spouse substantially outweights the disadvantage to the payee spouse. 
1.	Critics: Huge discretion for the judge, increases processing costs and is hard to predict
2.	If yes, voluntary retirement is legitimate change.  If payor wants new life and payee suffers, no. If equal effects, no. 
(ii)	Bright line test – If party (not otherwise under compulsion) voluntarily chooses a change in lifestyle, this bars application for modificatoin. 
1.	Critics: Too severe + unfair to obligor
(iii)	Motive-Based test (ORS 107.135, Glithero – see below)
1.	IF change is made in good fiath, application for modification approved
2.	If made in bad faith (one based upon desire to reduce alimony), will be denied
3.	Variations:
4.	Sole Purpose test:  If sole motivation is to avoid support ob, good faith is absent (criticized b/c party will always be able to advance at least one good argument)
5.	Primary Purpose test: More searching inquiry – if primary purp to avoid payment, no modification (OR)
6.	Difficulty – Hard to ascertain motive. 
(iv)	Negative Impact test:  Any negative impact on payee spouse considered sufficient to bar modification based upon voluntary retirement.
(4)	Disability – Involuntary loss of income b/c obligor becomes disabled – kids may be eligible for Social Security. Benefits substitute for loss of earning power.
(5)	Payee Income Increase:  H will arg support should go down – and it does sometimes.  Esp. if the support was based on the recipient not being able to support themselves.  
(6)	Payor going on strike:  H arg – right he has in the workplace. W arg – Severe consequences for kids, will suffer. Other parent should have a say. 
iii	OREGON:  107.135 (1)(a) Ct has power to modify child support order
(1)	Substantial change in economic circs of a party is sufficient for the ct to reconsider its order of support
(2)	Change in circs is not sufficient for reconsidering support if based on reduction of financial status resulting from a voluntary reduction of income if it is shown that such action was not taken in good faith but was for the primary purpose of avoiding support obligation. 
(3)	Glithero shows that just b/c court will reconsider doesn’t mean that it will modify support duty downwards.  Modification still rebuttable based on hardship to payee and kid. So what happens is:
(a)	IF good faith change in income, then you have to go to the formula
(b)	Work in the new numbers BUT
(c)	You can still deviate from the formula amount and the judge can use discretion to increase this amount. (Look at income level of parents and hardship on the kid)
d	Foreseeability:  If change in circumstances = foreseeable, this cuts against modification. 
i	Ex: I’m going to retire in 6 months, I’m going to get a new job in 6 months. 
ii	Generally not for things like the kid getting older so costs more – courts will modify for this. 
e	New Families – Spousal Support, Remarriage, and Cohabitation
i	New Families
(1)	Traditional Rule:  alimony terminated upon remarriage b/c new spouse’s support duty replaced former spouse’s support obligation. Cohabitation not socially acceptable. 
(a)	Some jxs still have this rule.
(2)	Modern – it could terminate but it doesn’t have to – depends on reason for the order being placed in the first place (OR)
(a)	Presumption that spousal support will end upon remarriage, but the court will examine why support given in the first place
(b)	OR – Sup Ct in Bates held that whether support should terminate upon remarriage depends on whether the remarraige “supplants the purpose behind the initial award.” 
(c)	Peterson – Jx does not automatically terminate support upon reM, instead “termination presumed unless W shows extraordinary circs”
(d)	W args from Peterson for not terminating support obligation upon reM (Know these three approaches)
(i)	Divorce decree should specifically address what happens upon reM. 
1.	Support in Peterson was for 1k a month for 7 years then 500/mo for 10 years. Decree silent on what happens if reM happens in first 7 years, but says it ends if in 10 year 500/mo period. 
a.	Ambiguous language not enough – nust have express statement that support does not end with reM.
b.	Demonstrates courts reluctant to order H to keep paying once W reMs
c.	ALI:  Periodic payments should automatically end upon reM “unless the original decree provides otherwise”
(ii)	If support payments were actaully part of property settlement, they will continue after reM
1.	W arg: fixed sum for fixed period is actually property.  This is based on prop awards being non-modifiable. 
2.	Ct uses totallity of the circumstances test – notes separate provision awarding 329k in case as prop settlement, holds unlike previous case where prop disguised as support to avoid taxes
a.	This test shows that label not always controlling – support/prop examined in context of all provisions to see if working like prop or working like support. 
(iii)	Exceptional circumstances may result in court not terminating spoousal support after reM
1.	This is the rule from Peterson- Spousal support terminates absent showing of exceptional circs. 
ii	Cohabitation
(1)	States that have statute that spousal support does not auto terminate upon reM:
(a)	Jx will also not autoterminate support b/c of cohabitation
(b)	But spouse’s umarried cohab may amount to a sibstantial change in circs that results in termination of support.
(2)	States that have statute that spousal support does terminate upon reM
(a)	Cts are divided – some jxs have case law, others have statutes.  
(i)	MIN:  auto termininate upon cohabitation b/c don’t want people to evade reM just for the sake of keeping their support
(ii)	MAJ:  provide cohab is a grounds for modifying or terminating spousal support. 
1.	W args cohabs do not assume reciprical obligations of M. H args cohab has led to changed circumstances  
2.	Dwyer – Support does not auto terminate b/c cohabitation is different than M – don’t have support duties, don’t have economic sharing once relationship breaks up.
(3)	Should definitely draft (carefully) for this in divorce decree
(a)	Marlon Brando case:  Language in divorce decree was that support would terminate if “she appeared to maintain a marital relationship w/ any person.”  - Hard to draft for – be careful re: ambiguities
(b)	Difficulty w/ objectively defining co-hab leads some to just put in a fixed amount of time for award instead
(4)	Argue for change in circumstances
(a)	Combs KY Sup Ct considered circs of cohabitation that would constitute a sufficient change in circs to warrant modifying spousal support – considered
(i)	Duration (long term relationship?)
(ii)	Economic Benefit (Cohab spouse is in position where she benefits – otherwise shouldn’t modify)
(iii)	Intent of parties – Is cohab spouse avoiding reM just to keep the payments?
(iv)	Nature of living arrangements – Space sharing or common household
(v)	Nature of financial arrangements – Is there “pooling of assets” – acutally a joint/team effort in the living arrangements? Who pays bills?
(vi)	Likelihood of Continued Relationship 
(5)	Policy:  Konzelman dissent – Judge notes that contracting for termination of support upon cohab punishes W for her choice of companionship while H is relieved of the burded of W to demonstrate that W’s financial condition is any better – No proof was more than a casual, social relationship – Calls it “unseemly bit of bargaining.” “In a civilized society, money cannot buy a woman’s right to choose her companions. A H should not be able to demand an exchange of that freedom as a bargaining tool.”
iii	New Families – Child Support
(1)	Studies:  MAJ of divorced people remarry, esp. women w/ kids. 
(2)	New kids – Can be analyzed under Deegan voluntary change in circumstances test (above, under modification of support post-divorce)
(3)	Stepparent’s obligatoin to support stepchildren: (Ainsworth)
(a)	MAJ – No legal support obligation.  Fact that you acquire step-kids is not a reason to reduce child support obligation to kid from former M
(b)	MIN (Vt) – Stepparents have a legal obligation to step children, just as if the H has a new biological kid.
(c)	Statutes of 20 states impose support duty on stepparents in some circs. (ORS 109.053 – obligation ends upon divorce)
(d)	OR – Stepparents must support stepkids living with them  - welfare statute, not widely used.
(4)	Priority of Families – Allocation of scarce resources
(a)	MAJ:  First family first.  First kid’s interests prevail.  Don’t penalize kids b/c their parents get divorced – Ainsworth dissent
(b)	MIN:  Second family first – keep the family together – 
(i)	In suit to modify support for kids in first M, ct imputes an amount of support for the kids in the second family from child support guidelines and deducts this amount from the parent’s income before calculating child support for the kids of the first family. 
(c)	OR:  Treat all kids similarly. 
(d)	New case out of TN:  Gallaher holds that first family first policy can’t pass minimum rational basis scrutiny. 
(5)	Income of new spouse
(a)	MAJ:  Don’t take income of new spouse and plug it into formula.  But the fact that the obligor parent is econ. better off w/ their new spouse can clearly be a rebuttal factor. When formula # comes up, Dad can say amount can be lower b/c of rich new spouse.
(b)	Cts in CP states as well as CL states have interpreted statutes providing that spouses are not liable for eachother’s premarital debts to mean that a noncustodial stepparent’s income CANNOT be considered in calcluating his or her spouse’s child support obligation.
(c)	BUT – May be considered in how it increases the parent’s ability to pay and so may justify an increase in award. 
(6)	Spousal Support v. Child Support:  Cts tend to prefer child support over spousal support.  
(7)	Non Joint Children (OR statute on p.9 of child support guidelines)
(a)	Legal child of one but not both people – not a stepchild. 
(b)	OR – Any time there is a nonjoint kid, you get a deduction from income that is then plugged into the caculation to determine support to other kids.  
(c)	ORS 137-050-0440:
(i)	Credit for obligation is calculated for nonjoint child – 
(ii)	Parent’s gross income minus amount of any spousal support a court orders that parent to pay
(iii)	Parent’s gross income plus any spousal support parent entitled to receive.
(iv)	Determine number of nonjoint children in parent’s immediate household
(v)	Determine number of nonjoint children parent ordered to pay support to by prior order
(vi)	Get “total nonjoint children” #
(vii)	Using scale at 137-050-0490, determine basic child support obligation for nonjoint kids by using adjusted income (adjusted for spousal support above)
(viii)	Parent’s income (adjusted for spousal support) MINUS the amount determined for “total nonjoint kids” obligation
(ix)	Parent’s gross income, plus or minus spousal support obligation, minus nonjoint kids obligation = Parent’s adjusted gross income for calcluation of basic child support under 137-050-0490
(8)	Views on Deviating downward:  Should treat each child equally regardless of parent or household.  Talke account of first family first.  Take care of custodial kids first, deducat amount necessary to take care of custodial kid and then compute for noncustodial. 
(9)	Constitutional Concerns and Support Duties when Family Receives Public Assistance
(a)	IN 1997, PRWORA (personal responsibility and work opportunity reconcilation act) eliminated AFDC (aid to familes w/ dependent children) and replaced it with TANF (temporary assistance to needy families)
(i)	AFDC – federal law imposed relative responsibility rules:
1.	Sibling deeming rule (challenged in Bowen, below)
2.	Custodial stepparent’s income had to be included in determining child’s eligibility regardless of whether state law imposed obligation on stepparents
3.	Income of grandparents had to be included in determining child’s elig. if child’s parent younger than 18 and living in grandparent’s home. 
(b)	Bowen v. Gilliard – For purposes of determining eligibility for public assistnace, look at economic unit instead of at biology (household basis) – Alternate system of family law in our culture that looks at the functional family.
(c)	Dandridge v Williams – mimimal rational basis scrutiny ordinarily used to assess due process and equal protection challenges to social welfare legislation.  Dissent argued for heightened scrutiny. 
(d)	Moore – Ct struck down zoning law that prevented cousins from living w/ their grandmother, saying the right to choose one’s family usint was entitled to heightened consittutional protection. 
f	Enforcement of Support Obligations
i	Private Enforcement Mechanisms 
(1)	Tips
(a)	Try to get lump payment to avoid enforcement of periodic payments
(b)	Preemption – With transfers of property like house, car – at the time the order is entered, make sure people have the proper documents to effectuate the tranfers and execute right there. Ex:  Have the DMV forms and sign them. For house, have other person quit claim. 
(c)	Periodic payments
(i)	Trust fund – If people have enough $$. Put enough in (principle + interest) to make periodic payments. (Bargain for this – courts won’t order – authorized by OR statute)
(ii)	Bond – to secure payment of support – expensive, but protects against things like premature death
(iii)	Life Insurance – on both parents. Absent statute not clear that court can order (OR statutes authorize)
1.	OR:  Has statute allowing life ins on obligor to assure child support payments. Obligee (owed support) is supposed to get a copy of the ct order that says life insurance is to be maintained and send it to the ins co – this way the ins co gives notice to obligee if ins lapses.  Otherwise, it will obey the wishes of the obligor.
2.	ORS § 107.105 – If spouse receives support instead of property, the court shall order the obligor to have life insurance in an amount commensurate with the obligation  (procedure set out in statute top of p24 statute book)
(2)	Orders of attachment – Have sheriff seize property
(3)	Real property – Statutes says when file order joint tenancy turns into tenancy in common and creates resulting trust.
(4)	Periodic payments – Most jxs have to go to court and show arrearages that haven’t been paid and motion to enforce – Would have to do this every month. Must renew judgments b/c of Statute of Limitations problems. 
ii	Contempt 
(1)	Generally Failure to comply w/ a court order (willful).  Can get thrown into jail.  Need to have a clear court order that says A is ordered to do X.  Need to show that the person didn’t comply Willfully (i.e., they were ABLE to comply and they didn’t)
(2)	Civil:  If you comply with the order you get out of jail.  (OR calls this remedial)
(3)	Criminal:  You have a fixed term of punishment ordered that will be imposed whether or not it is obeyed. (OR calls this punitive)
(4)	Issues
(a)	The two can get mixed:  Term of jail set for 30 days, suspended commitment and you won’t go to jail if you pay up.  Since this is a fixed sentence, it is criminal and on your record. 
(b)	Constitutional protections:  Prosecution has to prove every element of the crime beyond a reasonable doubt (i.e., ability to pay)
(i)	Courts now appoint counsel for indigent persons
(ii)	In most jxs, crim contempt proceedings can only be brought by the DA
(iii)	In crim proceedings have privilege against self-incrimination
(c)	Showing ability to pay:  MAJ – makes this not an element of the case in chief – becomes an affirmative defense for the obligor. (Obligor has burden of production) Feiock
(i)	In CA, if obligor put up enough evidence to create a jury q, then the burden of persuation shifts to the P to prove ability. 
iii	Defenses to Nonpayment of Support
(1)	Ability to pay:  Affirmative defense to contempt orders (MAJ). 
(a)	Should move to modify child support duty downward as soon as it becomes clear that one involuntarily suffers a long-term loss of income. 
(b)	Seek work orders In re Marriage of Dennis: Person out of job has to make X number of contacts that are documented saying you’re looking for job. 
(c)	Counter arg = Debtors prison – but Const objections usually fail – Comes down to a policy q of how much the court wants to lean on people. 
(2)	Federal law requires states to provide that overdue child support is judgment by operation of law. – CANNOT RETROACTIVELY MODICY – federal preemption. 
(3)	Linking Child Support w/ Visitation: 
(a)	MAJ:  independent obligations.  Custodial parent’s refusal to allow visits doesn’t exuces nonpayment of child support
(b)	MIN:  Child support duties expressly conditioned on compliance w/ visitation rights = hiding kid would be an excuse not to pay
(c)	OR:  Ct may order modification of child support when parent w/ custody has interfered w/ or denied w/out good cause the exercise of visitation rights. ORS § 107.431
(4)	In-Kind Contributions as an offset against child support
(a)	Obligor can’t satisfy order to pay specific sum in support by purchasing goods or services instead. 
(b)	Some courts have exceptions if custodial parent has consented
(c)	ORS 107.135:  Ct may allow credit against arrearages during the time the obligated parent has physical custody of the kid w/ knowledge and consent of custodial parent. 
iv	Criminal Penalties for Failure to Pay Support
(1)	Federal crime in some circs under the Child Support Recovery Act 18 U.S.C. § 228 p. 681
(a)	Challenged under commerce clause (US v Lopez)
v	State-Federal Child Support Enforcement Program
(1)	42 USC §§ 651-62, 666:  A state that doesn’t comply w. requirements loses substantial federal funding for its welfare program
(2)	States have to have expedited process for getting support orders
(3)	Core of program is free lawyers for obligor or obligee – Free lawyers will put into place:
(a)	Wage withholding orders 42 USC § 666:  Like an income tax withholding from montly paycheck for support duty. Works well for regularly employed people
(i)	ORS 25.378 and .396.  
1.	All prosepective orders are supposed to have witholding provisions (.378)
2.	Unless (.396)
a.	no arrearages
b.	have complied w/ all orders and
c.	2 parties agree to alter the arangement. 
(b)	Other Enforcement Devices (States must provide)
(i)	Judicial authority to impose liens against property
(ii)	Judicial authority to require obligors to post bond
(iii)	Allow failure to pay child support to be reported to consumer credit bureaus
(iv)	Withholding state tax refunds
(v)	Suspending drivers licenses
12	CHILD CUSTODY
a	Sole Custody
i	Old school:  Rex v Manville – kid goes to abundantly cruel father while mom still nursing – mom never got to see it
ii	Best Interest of the Child
(1)	This test places uber discretion in the hands of judges (standard) – Gradual movement toward structured rules and principles allowing courts to make an informed decision re: what the best interest of the kids is. 
(a)	Painter v Bannister:  At time, parental preference uber weak – could overcome preference w/ best interest of child – Grandparents are awarded custody in part b/c of dad’s “bohemian” lifestyle.
(2)	Gorilla Rule:  Harris’ term.  Kids when they reach a certain age will do what they want despite all of these factors and despite court ruling. 
(3)	Structuring Rules or Principles (To add some structure to loosey goosey Painter v Bannister)
(a)	Maternal Preference:  NO longer a standard in virtually every jx.  ORS § 107.137(4) expressly gets rid of gendered preference. This was an old rule of thumb
(b)	Very case/ fact specific
(c)	Stability of relationships, regularity of lifestyle, financial stability
(i)	Stability plays into the child’s psych/emotional well being
(d)	Expert’s role – Freud’s psychological parent:  Have to have expert testify 
(i)	Some people uncomfortabel w/ handing so much power to expert + expensive
(e)	Primary Caretaker Preference  Common rule of thumb  * Start w/ this assumption/rule of thumb, then consider other factors like lifestyle etc.
(i)	Pusey v Pusey – shoots down the maternal preference
(ii)	In what sense is having custody go to primary care taker in the kid’s best interest:
1.	Likely that kid’s material needs will be satisfied
2.	“Fairness” – W argues that she gave up career and it would hurt her to loose kid
3.	Treating kid like object v. human being – Should not put too much emphasis on parent’s interests – should focus more on kid. 
(iii)	Burchard v. Garay – Primary caretaker is backward looking, not forward looking. Mom had been primary caretaker from birth to TC hearing and no serious deficiency was shown – kid had become happy healthy well adjusted kid in her care (now she is working – TC determned there was a negative relation b/t woman’s desire to work and parenting – booo)
(f)	ORS § 107.137 Factors:
(i)	Primary consideration to best interest of the child – consider (These factors are not determined by isolating one factor):
1.	Emotional ties b/t kid and other family members
2.	The interests of the parties in and attitude toward the child
3.	The abuse of one parent by the other
4.	The preference for the primary caregiver of the child if the caretaker is deemed fit by the court
5.	The willingness/ability of each parent to facilitate/encourage close and continuing relationship b/t the other parent and the child 
a.	May not consider this if parent shows that other parent has sexually assualted parent or child and that continuing the relationship will endanger either parent or child
(ii)	If parent has committed abuse, there is a rebuttable presumption that it is not in the best interest of the kid to award sole or joint custody of the kid to the abuser
(iii)	Court considers lifestlye, conduct, marital status, income, social environment ONLY if shown that any of these factors are causing harm to the child  (emotional/physical)
(iv)	NO MATERNAL or PATERNAL PREFERNCE. 
(g)	ALI Principles:  Custody ought to be divided proportionally to the time the parents spent taking care of the kid during marriage. (Mixed response)
(h)	Effect of Parent’s behavior, beliefs, etc
(i)	Tend to involve MUDSLINGING:  Shelly v Westbrook- case at time where nursing babies taken from their moms and given to their dads, unless, apparently, the dad is a godless atheist.
(ii)	Religion
1.	In re M of Hadeen – 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 safetly of the child – Must be a reasonable and substantial likelihood of immediate or future impairment. (HARM)
a.	M arg:  Kids are doing fine, well adjusted, do well in school
b.	D arg:  M overly committed to religion, using kids as a means to an end – putting them under control of her religion rather than making decisions based on best interest. 
2.	Shunning/Rejection:  Factor to consider is whether religion teaches kids that outsiders are evil/damned.
a.	This will be considered harm esp. if kids taught to scorn a parent. 
3.	Kendal v. Kendal – D Catholic M Jewish. D’s sect believes other faiths are “Damned to hell,” including Jews. 
a.	Individual liberties may be restricted where there is a compelling interest – must be affirmative showing of harm caused by exposure to conflicting religious teachigns.  Can be shown by kids demeanor, attitute, school work, appetite, health, outlook
b.	found in this case – D threatened to cut off the fringe of kids’ religious clothes etc. 
4.	Osier – M doesn’t want kid to get a blood transfusion if he needs it. TC awards custody to D b/c of this – Sup Ct reverses:  Have to make a finding of harm.  Then must balance conflicting interests involved (deliberate and articulated balancing – make least possible infringement upon the parent’s liberty interests consistent w/ the child’s wellbeing)
(iii)	Sexual Behavior
1.	Must show connection b/t sexual conduct (whether hetero or homo) and harm to the child for the conduct to be relevant in custody determinations (nexus test) 
2.	Cohabitation:  Jarrett v Jarrett – Ct transfers custody to D b/c M is having open and continuing cohabitation w/ member of opposite sex.  Ct finds potential moral harm. 
a.	M arg:  No ev that she was unfit. Kids well dressed, healthy, well cared for. Ct should not impose personal preferences and standards to the decision.
b.	Other courts:  Some follow Jarrett.  Others place less weight on sexual relationships
c.	Some say important when kids have been adversely affected or will be adversely affected in the near future. 
3.	Sexual Preference:  M.A.B. v. R.B. Need a nexus b/t homosexuality and harm.  Ct holds that kid is best off w/ dad even though he is gay. “No deleterioius affect
a.	Cases where the conduct is obvious to the child may hold otherwise:  Roe v Roe – Sharing a bed w/ male lover while child in the house was “flaunting.” and “flies in face of society’s mores.” Ct found relationship rendered dad an unfit parent. 
b.	Bottoms – Conduct inherent in lesbianism is punishable as a felony so is relevant factor in determining custody. In this case ct found proof that mom had harmed kid. 
(iv)	Race
1.	Interracial Marriage:  Palmore v. Sidoti – Reality of private bias and the possible injury they might inflict b/c of an interractial M are not permissilbe considerations to remove a kid from the custody of its natural mother. 
a.	Jones v Jones – D is Native American, M is white. D awarded custody b/c he argued kids would be discriminated against in M’s home – M appealed saying race was impermissibly considered – Said D showed “sensitivity to the need for his children to be exposed to their ethnic heritage ...”
2.	Don’t forget deciding based on best interest of child – H. says this is why the case is hard – b/c child is living in racist community
(v)	Spouse Abuse
1.	ND has statutory presumption against granting custody to a parent who has committed acts of domestic violence – presumption is created by showing credible evidence and then can only be overcome by clear and convincing evidence. 
2.	Where both parents involved in abuse:  Presumption goes away if violence is proportional. But if one parent’s d.v. is significantly more than other, presumption is against more abusive one. Owan v. Owan
3.	Due Process Concern:  If presumption that all parents who engage in d.v., this may be unconstitutional under Stanley v. Illinois – discussion p. 778
4.	OR:  Statutory presumption against abuser – see 107.137 factors above. This raises the fighting stakes of custody.  (NOTE – this does not cut off visitation, just re: custody)
(vi)	Friendly Co-Parenting
1.	Likelihood that a parent will allow other parent regular visitation is a factor to consider. 
2.	Peckham v Peckham Primary caretaker is not determinative – other parent actively participated in kid’s care and displayed a greater sensitivity to the kid’s needs and would be more lielly to facilitate visitation. 
3.	Several state statutes now incorporate friendly parenting element for cts consideration
4.	False allegations of spousal abuse/ child abuse are the biggest indicator of bad relations b/t parents
iii	Rights of the Non-Custodial Parent
(1)	OREGON SOLE CUSTODY ORS § 107.154  (See also factors above under 107.137)
(a)	Person who does not have legal custody has rights to access info
(b)	When there’s an order of sole custody to one parent, the other parent still gets to:
(i)	inspect school records and talk to school staff re: kid’s welfare and education (to same extent as custodial parent can)
(ii)	inspect gov. agency and law enforcement records to same extent as custodial parent
(iii)	to consult w/ any person who may provide care or treatment to kid and to receive medical, dental and psych records
(iv)	to authorize emergency med, dental, psych, psychiatric, or other health care if the custodial parent is unavailavle or
(v)	to apply to be the kid’s conservator, guardian ad litem or both. 
(2)	ORS 107.164:  Both parents have a responsibility, once custody or protective order re: kid is issued, to provide addresses and contact phone numbers to the other parent and to immediately notify other parent of any emerg. circs or substantial changes in the health of the child. 
b	Joint Custody, Visitation and Modification
i	Generally
(1)	Most states have preference for joint custody. 
(2)	Split physical custody (where each parent has custody of one kid) – Many states have presumption against splitting up siblings. 
(3)	Frame arguments in terms of the best interest of the child. 
ii	Definitions
(1)	Come from Taylor v. Taylor [facts of case could have been either joint custody or sole custody w/ liberal visitation – hard to tell]
(2)	Legal Custody:  Right and obligation to make long range decisions involving education, religios training, discipline, med care, other matters of major significance.  
(3)	Joint Legal Custody:  Both parents have equal voice in making these decisions. These decisions don’t really come up often in real life – symbolic. Reason that joint legal custody often awarded.  Makes it so both feel like parents rather than visitors. 
(4)	Physical Custody:  Right and obligation to provide home for kid and make day to day decisions required during the time the kid is actually w/ the parent. (What time kid goes to bed, afterschool activities)
(5)	Joint Physical Custody:  In reality “shared” or “divided” custody. May, but need not be, on 50/50 basis – most commonly involves custody of one parent during the school year and the other during summer vacation
iii	OREGON JOINT CUSTODY ORS § 107.169 (defined as joint legal custody)
(1)	Joint custody means parents share rights and responsibilities for major decisions re:
(a)	residence, education, health care, religious training. 
(2)	Order may specify one home as primary residence
(3)	May designate one parent to have sole power to make decisions on some matters while both parents share on other matters
(4)	Court shall not order joint custody unless both parents agree to its terms and conditions
(5)	When parents agree, court can’t overrule by ordering sole custody to one parent. 
(6)	Modification  Requires showing of changed circumstances and showing that modification is in the best interest of the child
(a)	Inability of unwillingness to cooperated is a change per se grounds to modify
iv	Shared Physical Custody – Child Support Amount Goes Up – 137-050-0450 p14 Guidelines
(1)	Where custody is split somewhere in the range of 35/65% to 65/35%, then child support goes up, but is prorated for the number of nights spent at home.  So multiply child support obligation by 1.5, then prorate for the number of nights you have the kid (i.e., you have the kid 65% of the time.  Multiply your support obligation by 1.5 and then pay 35% of that amount to the other spouse)
v	Disagreements b/t Parents
(1)	Lombardo – M and D can’t decide whether to enroll kid in a gifted child program.  TC says parent who is the primary physical custodian can make the decision. Remanded b/c the court has to make decisions in the best interest of the child
(2)	Two possible approaches:
(a)	Court makes decision in best interest of child – will hold hearing then decide. 
(i)	+ one parent doesn’t have right to trump the other
(ii)	-  do we really want courts making these decisions?
(b)	Tiebreaker rule gives one parent the authoirty to decide
(i)	Usually person that the kid lives w/ most of the time
(ii)	-  makes joint legal custody kind of hollow b/c primary trumps
(c)	Whoever was being obstinate and difficult loses. 
c	Visitation and its Enforcement
i	Basic Considerations
(1)	Form of Visitation – can reduce problems down the road
(a)	ORS 107.102 Parenting plans – two types:
(i)	General:  General outoine, detailed version developed on informal basis. Must set forth minimum amount of parenting time and access for noncustodial parent
(ii)	Detailed:  Times, dates, residential schedule, holidays etc. This will help out a lot if there is a conflict.
(2)	Failure to Comply with Order
(a)	Not order for visiting parent to visit, but for custodial parent to allow visitation – 
(b)	Comtempt:  Have to get lawyer, go to court. – File motion, get hearing, court can modify. 
(c)	OR:  Can terminate child support while person doesn’t allow visit (rare)
(d)	Court can order the kid to visit (but remember gorilla rule) 
(3)	Parental Wrongdoing
(a)	Morgan v. Foretich – M thinks D sexually abuses kid – M held in contempt – jailed – hides kid – Got 2 years in jail but never gave up the kid. 
(i)	W  Defense – Necessity? Suggested by one commentator. Need good faith belief
(b)	About the only people who don’t get SOME kind of visitation order is people who have murdered someone in the kid’s family. 
(c)	Most jxs try to set up structured visitation where some sort of supervision is put in place
(d)	ORS 107.437 – Order of assistance to obtain custody of kid held in violation of custody order
(i)	This is not for enforcing parenting time or visitation rights. 
(4)	Moving
(a)	Does parent have to show the move is necessary before he/she can be awarded physical custody? (Burgess).  Court finds parent has right to change the residence of child and in oder to stop it you have to show harm.  (Harm does not include having to modify the visitation orders)
(i)	This is a change – Custodial parent used to demonstrate move was good for kid.  
(b)	Desire to relocate is not itself a material change of circs  “Right to travel”
(c)	ORS § 159:  If moving more than 60 miles have to give the other parent notice so that parent can seek modification. 
(5)	Attorney Client Privileges
(a)	Bersani v Bersani – M moves. Court finds that P’s willful contempt in leaving the country in violation of court’s order is a fraud on the court, so the A/C doesn’t apply and the attorney has to disclose where they went. 
(b)	Should counsel your client – help them think through circs of certain decisions. 
ii	Modification of Custody and Visitation Orders
(1)	Custody orders always modifiable upone showing change in circumstances. 
(2)	Visitation is easier to change than custody. 
(3)	UMDA – Can’t bring modification petition w/in 2 years of last order unless you argue that the last order is harmful (can’t just say change will be better for kid)
(4)	Analysis for modifications in custody (from State ex rel Johnson v. Bail – OR)
(a)	Was there a change in circumstances since the original judgment or last order affecting custody?
(b)	Would it be in the best interest of the child ato change custody from the legal custodian to the moving party?
(c)	Court is to consider parent’s conduct ONLY if that conduct is causing or may cause emotional or physical damage to the kid.  (NEXUS test) – Case has been criticized for rewarding bad behavior (mom was hiding kid – dad got custody order while mom was away) 
(5)	ORS 107.431 Modification of parenting time – Court may modify as it deems just and proper. 
(6)	ORS 107.434 Expedited parenting time enforcement procedure
13	LEGAL RECOGNITION OF THE PARENT-CHILD RELATIONSHIP
a	Unmarried parents and their children
i	Legal Parenthood
(1)	How established
(a)	Biological Parenthood
(b)	Being married to a person who already has parental status
(c)	Filling the role of parent (adoption)
(2)	Significance
(a)	Support duty
(b)	Custody:  Also includes the right to avoid having your kid adopted by someone else (unwed dads)
(c)	New property – social security benefits, pensions – Fundamentally based on laws of inheritance
(d)	Poss – wrongful death actions
(3)	Can be a legal parent for one area and not others – support duty, custody, inheritance are all different
(4)	Premesis in law
(a)	Everyone has one mom and one dad
(b)	They have no more than one mom and one dad
ii	Basic Analysis in Unwed Father case
(1)	Establish bio paternity
(2)	Once established there is a support duty
(3)	Look at the statute of the jx re: custody/adoption 
(a)	Does it say seize opportunity or full rights
iii	Determining Parenthood:  Presumptions
(1)	Marital Presumption of Paternity
(a)	All states have presumption (at least rebuttable presumption) that H is father.
(b)	MAJ:  Can rebut presumption 
(i)	MAJ – can always get rubuttable evidence in, but probably not if contrary to best interest of child
(c)	MIN/OR:  Conclusive presumption.   
(i)	ORS § 109.070 - No one can rebut the presumption if the H was not impotent or sterile and the wife and husband were cohabitating when the child was conceived.  
1.	If not living together or H is sterile, the presumption becomes rebuttable. 
2.	Critical quetsion becomes proving predicate facts – OR case law says whoever wants to claim the benefit of the presumption has the burden of proof. 
(ii)	CA (Michael H v Gerald D) Wife cohabitating w/ husband who is not impotent or sterile is conclusively presumed child is child of marriage.  Presumption may be rebutted by blood tests – but only if motion for tests is made w/in 2 years from date of child’s birth. 
1.	F arg:  Constitutional Due Process  Liberty interest in relationship w/ kid
2.	Scalia:  Tradition / historical respect accorded to relationships w/ unitary family – should be protected against claim of bio dad.  Countervailing state interest in protecting right of mom and husband as fam unit. 
3.	Stevens concur – Should give visitation – in best interest of kid
4.	(Dissent – 5 justices refuse to foreclose poss that dad may have constitutionally protected interest in relationship w/ kid)
(d)	Before a third party can be awarded custody over the objection of a parent, the parent must be shown to be unfit or custody in parent is detrimental to the child. 
(e)	Estoppel (?) – If hold child out as being married partner’s baby, estopped from arguing otherwise 
iv	Once Paternity is Established
(1)	Sup Ct:  Bio parents have Constitutionally protected right to a functional parent-child relationship w/ child, but they have to seize on that opportunity or rights can be taken away
(a)	Seize:  Pay child support, Express interest/willingness to take on and help raise the child while the mom was pregnant
(2)	OR:  Once paternity is established, man has full parental rights. ORS § 109.094 – How does this interact w/ conclusive presumption that H is dad when H and W married?  
v	Dual Fatherhood  No support in the history or traditions of our country
(1)	Law ordinarily assumes that a kid has one mom and one dad.  In variety of circs, cts/leg give some measure of legal protection to the relationship b/t kids and more than one adult of the same sex, esp. if both agree
(2)	LO has doctrine of multiple parenthood in situations where mom conceived a kid w/ man not H while married. (Bio fathers have rights and dutes while kid still legal child of mom’s husband)
(3)	Sorenson (OR) interpreted OR psych parent statutes as recognizing possibility that kid might have more than one psych parent (step mom)
vi	RIGHTS OF NONBIOLOGICAL PARTIES
(1)	Child’s Emotional Needs
(a)	Freud “Psychological parent” = Adult who through interaction, companionship, interplay and mutuality, fulfills the kid’s psych. as well as physical needs.  Authors urged cts should protect relationships at all costs
(2)	Troxel v. Granville – WA third party visitation statute was super broad. No limitation on ct’s discretion. WA Sup Ct said the whole statute was unconst not on its face but as applied b/c parental rights are Const protected.  Requires more that a judge deciding something is “better for kids” (excercising discretion).   
(i)	Mom didn’t want gparents visiting as much as they wanted.  
(ii)	Statute found unconst on face b/c limitless grant of discretion, zero limits on standing, and open access to intrude on parents constitutional rights.
(iii)	SC – 4 hold Const, 4 hold Unconst.  O’Connor breaks tie saying not unconst on face, but as applied: parental rights are constitutionally protected but visitination by nonparents will be determined on facts and will require more than a judge deciding something’s better for kids in order to limit parental rights.
(iv)	Statute granting third-party visitation must give deference to parental decisions – overcoming parental perogatives requires more than just judge excercising discretion.  (May have to show harm to child)
(b)	ORS § 109.119 –  Amended after Troxel - One of the most far reaching statutes. Focus is on people who can be ID’d as psychological parents.  Gives custody or visitation rights to non-parents
(i)	Burden on proof is on the person attacking legal parent.  
(ii)	Any person including, but not limited to, a related of nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention w/ the court having jx over the custody, placement, guardianwhip or wardship of that child. 
1.	There is a presumption that the legal parent acts in the best interst of the child.
2.	Can be rebutted – court can consider following factors:
a.	Petitioner has recently been child’s primary caretaker
b.	Circs detrimental to kid exist if relief denied
c.	Legal parent has encouraged the relationship
d.	granting relief would not substantially interefere w/ custodial relationship
e.	Legal parent has unreasonably denied or limited contact b/t child and petitioner
3.	In deciding whether to award custody or guardianship over the objections of legal parents, cts can consider
a.	legal parent unwilling or unable to care adequately for kid
b.	plus factors listed above
vii	Traditional and Constitutional Protections for Families
(a)	Moore v. City of East Cleveland – Zoning ordinance prevented people who were not members of a “single family” from living together.  Sup Ct finds they have a Constitutionally protected right to live together as a family.
14	JURISDICTION AND RECOGNITION OF DECREES FROM OTHER STATES
a	Generally
i	Jx requirements for granting divorce, ordering spousal or child support, dividing property and awarding custody are different – so ct may have jx for one of them and not the other.
b	Divorce
i	Jurisdiction to Grant Divorce:
(1)	Court located in state in which at least one of the spouses is domiciled, this is a consititutionally sufficient contact w/ the marital status
(2)	Domicile – s/he is resident and intends to continue lifving there for indefinite future.
(3)	Durational residency requirements  – range from few weeeks to a year or more
(a)	ORS 107.075 – At least one party has to be resident of state at time of filing divorce for at least 6 months beforehand. 
(b)	But court has jx to annul M on grounds of bigamy, consanguinity, insufficient age, incapacity to consent, force or fraud if the M was solemniced in this state and a party is a resident of the state w/out imposing durational residency requirement
ii	Full Faith and Credit – Divorce Decrees
(1)	States required to recognize as valid divorce decrees granted by courts of other states if that other state was the domicile of at least one spouse.  If neither spouse domiciled in state, cts won’t always recognize – but see below
iii	Res Judicata and FF&C
(1)	States have to give the same res judicata effect to divorce decrees from other states that they would give to their own  This is the Sherrer rule:  
(a)	both spouses participated in judicial proceedings culminating in divorce decree to sufficient extent that
(b)	if the 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 b/c res judicata ... then
(c)	that court must give same effect to the divorce decree from the other state. 
(2)	Participated =
(a)	appearing in the proceedings in person or by an attny and contesting jx
(b)	appearing in person or by an attny and having the opp. to contest jx even if not actually contested
(c)	being personally served w/in the state
(d)	otherwise being sugject to court’s personal jx under long arm statute
(e)	being served by mail outside the state, signing and returning consent to entry of default order
(3)	Standing of Third Parties – Johnson v. Muelberger – If under state law persons other than the spouses can’t collaterally attack a divorce b/c no standing or b/c they are in privity w/ one of the spouses, then they can’t attack the divorce in other states. 
(a)	Ex:  In some states kids of spouses lack standing to collaterally attack a divorce.  
(i)	Also, administrator of a deceased spouse’s estate is considered in privity w/ decedent – so administrator can’t collaterally attack if the decedent spouse couldn’t have. 
iv	Recognition of divorce decrees from other countries:  FF&C only deals w/ orders rendered by US. 
(1)	 If country is domicile of at least one of the spouses, cout will recognize divorce decree as a matter of comity.  
(2)	Some states will recognize divorce decree even if neither spouse domiciled if the decree would have been entitled to FF&C under Sherrer if it had been entered by a US court. 
(3)	Some courts refuse to recognize foreign divorces if foreign country’s law is fundamentally inconsistant w/ law of the state which is asked to recognize foreign divorce. 
c	Property Division 
i	Jurisdiction to divide property incident to divorce
(1)	Modern Due Process minimum contacts test:  Court which is not located in the state in which the prop is located but which has sufficient contacts w/ both H and W can decide property rights as b/t them, including real prop in a different state. Ex:  A and B Oregon domiciliaries, Oregon divorce ct could award A the vacation home in California.
ii	Interstate Recognition of Property Division Orders
(1)	Real Property	
(a)	Located in same state that does divorce:  register the decree in the record of title and this is sufficient to change title
(b)	Located in different state:  Court that has in personum jx over one of the spouses has to order that person to go to the state and convey title to the other
(i)	Some courts hold that b/c no effective conveyance by the person holding title and b/c decree can’t itself change title, then the prop belongs to the person whose name is on title
(ii)	RS2 Judgments/ other courts – decree in first state binding as b/t the parties and so should be enforced in state where prop located unless this would violate fundamental policy of the state
(2)	Personal Property
(a)	Same problems as above  Lawyers should have requisite papers ready for the spouse to sign at time of divorce
d	Support Orders
i	Personal Jx to enter support orders
(1)	ORS 110.318 based on UIFSA § 201  OR’s long arm statute for initial jx.  Ct has jx to determine the child or spousal support if D:
(a)	is personally served in the state
(b)	submits to jx by consent, entering general appearance, or filing a document having the effect of waiving any contest to personal jx
(c)	resided w/ kid in the state
(d)	resided in the state and provided prenatal expenses or support for the kid
(e)	did acts or gave directions that reusulted in the kid currently living in the state
(f)	had sex in the state that could have led to conception of child
(g)	asserted parentage in state parentage registry
(h)	Cathcall – jx if consistant w/ state and fed constitutions. 
(2)	Also, can enforce if parties have both lived in OR for 6 mos (ORCP 4k2) – Once satisfied, OR courts have jx over the person who moves away for one year
(3)	Ex of unconstitutional application of long arm using purposeful availment test (insufficient contacts)  Kulko – Father had been in CA 13 yrs ago, and since then agreed to let his daughter visit mom in CA for 3 months a year. Neither of these contacts was sufficient to establish jx.  
ii	Treatment of Support orders from other states
(1)	FF&C for support orders: 
(a)	Ct may be asked to enforce unpaid arrearages
(b)	Enforce prosectively amounts that have been ordered but aren’t yet due
(c)	Asked not to modity amounts established in original order. 
(2)	ORS 110.405 – Person in other state sends a copy of the order to the Division of Child Support of the DOJ, which sends order to Circuit Court, which registers the order. This order then is enforceable.
(3)	Oregon residnet who wants support order enforced in another state sends order to appropriate state agency in that state for registration. 
(4)	Modification:  Sharply limited by UIFSA.  ORS 110.327  - spousal support order from onother state that is registered here may not be modified if another state has continuing jx.  – Forces litigation over modivfication back to the state that originally issued order. 
(a)	If no other state has continuing jx and if OR can get personal Jx over all the parites, it may assert jx to modify.
iii	Enforcing Federal Statute re: Interstate Enforcment
(1)	State court which properly asserted jx to determine support has continuing exclusive jx over child support so long as kid or contestant lives in thestate unless the parties agree in writing to allow alother state to assert jx. 
(2)	States can’t modify child support order from other state unless that state has lost continuing exclusive jx – It must enforce child support order
(3)	Federal act prevails under supremacy clause – and this law is set out in Full Faith and Credit for Child Support Orders Act 28 USC 1738B.
e	Child Custody
i	Jurisdiction to enter child custody orders
(1)	OR law = UCCJEA – Determines whether ct has subject matter and personal jx to decide custody case.
(2)	Applies to all proceedings where custody or visitation is at issue. 
(3)	Applies to FAPA proceedings if they include custody orders. 
(4)	Stork  - failure to plead as required and failure of TC to find jx under the UCCJA deprived the court of subject matter jx to decide custody.
(5)	ORS 109.174 – Court may assert jx based on:
(a)	HOME STATE Oregon is the home state of the kid on the date of commencemnet of the proceeding, or was the home state of the kid w/in six months before the commencement and the kid is absent from the state put parent or person acting as parent continues to live here
(i)	Home state = one where kid has lived for 6 mos, or if younger than 6 mos, the state the kid lived from birth w/in any of the persons mentioned
(ii)	If OR = home state no other state can assert jx initially – if another state = home state, OR can’t asert jx initially
(b)	SIGNIFICANT CONNECTIONS IF child has no home state of if home state declines to assert jx on the ground that OR is more appropriate forum, then OR may assert jx if 
(i)	the child and the child’s parents or the child and at least one parent or a person acting as parent, have significant connection w/ this state other than mere physical presence, and
(ii)	Substantial ev available in this state re: child’s care, protection, training and personal relationships
(c)	CATCHALL– Rare tiems when no state takes jx or significant cx provisions
(i)	OR can assert temporary emergency jx if kid in state and has been abandoned or nec in emerg to protect kid b/c kid, or sibling or parent of kid is subjected to threats/abuse
(d)	Ct may decline to exercise jx if
(i)	parent wrongfully taken kid or otherwise has unclean hands 109.764 or
(ii)	another state is more convenient forum  109.761
ii	Treatment of Custody orders from other states
(1)	Enforcement – ORS 109.781:  OR will recognize and enforce custody determinatino from other state if it had jx in conformity w/ UCCJEA.  IF ct doesn’t have jx, may take jx to enter temporary order.
(a)	Custody orders from other states can be registered in OR – these are enforced as original OR orders would be 109.787 – Have to give notice – they may contest only on groudns that issuing ct lacked jx
(2)	Modification ORS 109.744 –  Basically, have to modify the order in the state that issued in unless nobody (kid, parent, person acting as parent) lives there anymore. Once OR ct asserts jx under .741, it has exclusive, continuing jx to modify the order unelss and until:
(a)	Neither the kid nor the parent have a significant cx with the state or 
(b)	ct dtermines that kid and kid’s parents do not live in the state anymore
(c)	So antoher state can modify OR order only if nobody lives here or has significant cx w/ state. And OR can’t modify another state’s order unless has jx under 109.741 and
(i)	court in other state determines that it no longer has exclusive continuing jx or defers to OR assertion of jx b/c OR is more convenient forum, or
(ii)	Ct of this state of another state determines that nobody (child, parent, person acting as parent) lives in the other state anymore
iii	Enforcing Federal Statute Re: Interstate Enforcement
(1)	Parental Kidnapping Prevention Act – 28 USC 1738 is consistant w/ UCCJEA – if state law were inconsistant, PKPA would prevail under supremacy clause. 
(2)	Whether state must enforce and may not modify another state’s decree depends on the jx of the orignal court:	
(a)	if jx to make the initial decree was asserted under conditions specified by the PKPA, other states must enforce and may not modify the decree
(b)	If initial assertion of jx was inconsistant w/ the PKPA, other state are not obligated to enforce the decree and there is no fed bar to modifying decree
(c)	A state asserts initial jx consistant with PKPA if:
(i)	Kid’s home state (see definition above) or
(ii)	No state is kid’s home state and the state has significant cx w/ the litigation and substantial ev is available in the state, or
(iii)	There is an emercency or
(iv)	No other state has jx under tests in i – iii
(v)	STATE THAT ASSERTS JX UNDER ii, iii or iv when another state is the home state does not assert jx consistant w/ PKPA, so decree is not entitled to be enforced unless home state has declined to exercise jx. 
(d)	Modification – If first state asserted jx consistantly w/ PKPA, another state may not modify the ct order if
(i)	issuing state’s own law provides that it still has jx to modify and
(ii)	the issuing state is still the residence of the kid or person claiming custody
(iii)	If issuing state still has jx under this test no other state may modify custody decree unless issuing state declines to exercise jx. 
iv	Procedural Matters – 
(1)	ORS 109.767 Imposes pleading requirements – Parties must give child’s present address, child’s address for the past five years, and whether other custody proceedings are pending or completed.  Parties have continuting duty to keep ct informed of developments in these areas. 
(2)	ORS 109.754 – Joinder of claimants
(3)	109.771 – Ct can order claiminats to appear
(4)	109.717 Child custody determination binding on those who received notice
(5)	109.731 Cts in different state communicate b/t themselves to determine whether conficting proceedings are pending or contemplated 
(6)	109.734 and .737 Out of state depos and judicially ordered forms of fact gathering
(7)	Procedures for finding someone who’s gone into hiding w/ child in defiance of custody order:
(a)	Federal Parent Locator Service
(b)	Federal Kidnapping Act amended to make interstate flight by parents come w/in provisions – so FBI can get involved.  For this provision to come into effect, state statute must make child-snatching a felony 
(c)	ORS 163.245 and .257 – class C felony for enticing or keeping person from person’s lawful custodian w/ intent to keep child for protracted period, konwing or w/ reason to know you have no legal right)