Evidence Standards (Lowest to high) from class

 Preponderance of the evidence

o More likely true than not
 Clear and Convincing
o highly and substantially more likely to be true than untrue.
o Highly probable
 Beyond a Reasonable Doubt
o legal burden of proof required to affirm a conviction in a criminal case. The prosecution must
convince the jury that there is no other reasonable explanation that can come from the evidence
presented at trial. The jury must be virtually certain of the defendant’s guilt in order to render a
guilty verdict.
 Substantial Evidence
o Standard of review used in Appellate review
o Deferential standard lower than preponderance of the evidence
o Look to entire record for such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.

American Family today

More diverse than ever before – multi-generational housing has increased, single-occupant households have
increased, the median age of first marriages increased to 30 years old, populations of cohabitation have increased,
and single parenthood has increased.

Purposes of Family Law

 Regulation of the formation and dissolution of the family unit

o Marriage
o Divorce
o Parentage
o Custody
 The law’s response depends on the goals with respect to regulating the family unit.
 Function of Family Law
o Protective function: A basic duty of law. State’s interest in protecting partners and children from
abuse and of fostering children’s best interests.
 Many states have a rebuttable presumption against awarding custody to an abusive parent
o Facilitative Function: the law helps people to arrange and live their lives in ways the behavior
that they choose.
 Validate private choices
 Allow people to enter into enforceable contracts
o Arbitral function: Helps people resolve conflict
o Expressive Function: provide a voice in which citizens may speak and alter the behavior of
people the law addresses. Example: Proper marital behavior of faithful, not cruel, and living
together
o Channeling Function: The law develops and supports social institutions which are thought to
deserve desirable ends.

Introduction to Family Law Practice

  The evolving status and scope of Family Law Practice
o Family law was not always a high-reputation practice
o Divorce was seen as a profound stigma
 Father was head, the wife was a sexual being and dependent on children
o Those who were involved in divorces were those who found themselves excluded from practice
due to ethnicity, race, or gender
o Evolved with no-fault divorce legislation and equitable property distribution
o Movement toward ADR
o Family lawyers have more bar complaints than most
 People-oriented practice
 Need a range of skills
 Psychology
 Tax
 Contracts
 Family planning
 Need to be objective
 Make rational legal arguments
o Justice gap: Most don’t know how to divorce, and the cost of divorce is ENORMOUS!
 The Legal System’s approach to Family Law Disputes
o Shift from adversarial to collaborative agreement
 People are satisfied in collaboration
 Because they can decide how family changes
 Done through MEDIATION
o Another legal approach is the Pre-nup
 Completed when spouses still like each other
 Knowing contract in place has effect on behavior in the relationship
 ETHICS ARE TRICKY
o Usually about child abuse, neglect, spousal abuse
 In past…shut up
 On going or in the future…may disclose

Families and Constitutional Law

 FULL FAITH AND CREDIT:

 States are sovereign but
o Concepts of comity mean a state should recognize divorce of another
state
o States must give Full Faith and Credit to decrees of other states when
the parties have followed the laws of that other state
 BUT only if the other state where proceedings
occurred had jurisdiction over the marriage
 Defining Family
o Parents and children:
 Meyers
 Liberty right in Family
 Right, to conceive and raise a child
 Deemed essential
 Pierce
 Child is not a mere creature of the state
  Those who nurture them and direct their destiny have the right and duty to
recognize and prepare for additional obligations
 Prince
 Custody, care, and nurture of the child reside first with the parents
 Troxel
 Third-party grandparents have no right to visitation
 The parent directs the child’s care, custody, and control

o Moore v. City of East Cleveland (DEFINE FAMILY)

 Substantive due process – (14th Amendment): Protect from governmental interference
with fundamental due rights to define family – apply strict scrutiny
 Does not have a compelling interest
 Law not narrowly tailored to meet the compelling interest
o Fundamental right to Marriage
 Marriage is a fundamental, constitutional right! Nothing is more important in our judicial
system than for our fundamental rights to be protected and upheld. Statutes that infringe
on this fundamental right are subject to strict scrutiny. The state must have a compelling
interest in infringing upon this right and the law must be narrowly tailored to achieve that
interest.
 Meyers v. Nebraska
 Without doubt, it denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations
of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law as essential
to the orderly pursuit of happiness by free men.
o Privacy in Marriage Griswold v. Connecticut (STARTING FAMILY IN MARRIAGE)
 Griswold - no longer could prohibit married couples from using contraception
 Substantive due process -14th Amendment -Substantive due process – (14th Amendment):
Protect from governmental interference into fundamental due rights to define family –
apply strict scrutiny
 Fundamental Right
o COMPELLING GOVERNMENTAL INTEREST
o AND NARROWLY TAILORED
 Does the Bill of Rights contain an implied right of privacy that permits the use
of contraceptives by married persons?
o Yes. A right of privacy-protecting the intimate relations of married
couples is implied in the Bill of Rights. For example, the First
Amendment protects the right to association.
o The Third Amendment prohibits the quartering of soldiers in a person’s
house without their consent. The Fourth Amendment protects against
unreasonable searches and seizures. The Fifth Amendment protects
against self-incrimination. The Ninth Amendment provides that “the
enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”
 The protected activities in each of these Amendments are
penumbras that are not specifically enumerated in the
Constitution, but instead represent various zones of privacy
into which the government cannot intrude.
 o The marital relationship is located within a zone of privacy impliedly
created by these various fundamental constitutional guarantees in the
Bill of Rights.
 The Connecticut law seeks to prohibit the use of
contraceptives in the marital relationship and in doing so
violates this area of protected freedoms. The right of privacy
in marriage is a concept older than the Bill of Rights that
should necessarily be kept sacred and free from intrusion by
the state. The Connecticut law is unconstitutional, and
Griswold’s conviction is reversed.
o Single and have kids: Right to Individual and Family Privacy (EQUAL PROTECTION)
 Eisenstadt v. Baird- Do unmarried persons also have right to contraceptives? – Court
says YES
 Statutes prohibiting contraception per se, violates the rights of persons under the
Equal Protection clause of the Fourteenth Amendment.
 Compelling state interest WAS: Protect purity, preserve chastity, encourage
continence and self restraint, defend sanctity in the home, and engender in the
state and nation a virile and virtuous race of men and women.
o Abandoned then stated the object of legislation was really to discourage
premarital sexual intercourse.
o COURT says cannot be the aim because the statute is riddled with
exceptions. AND
o Statutes have a doubtful relationship to the criminal prohibition of
fornication. Example: Anyone who gives away contraception is charged
with a felony and gets 5 years while a person who has a child out of
wed-lock gets 90 days as a misdemeanor and a fine. This cannot be the
purpose of the legislation….to stop fornication.
 Other State Interest: Serve the health and needs of the community by regulating
distribution of harmful articles.
o Statute was cast only in terms of morals: Chastity, Morality, Decency,
and Good Order.
o Health cannot be the aim, the statute would be discriminatory and
overbroad and if the aim was to have a physician prescribe, that should
be the case for married and unmarried people.
o Redundant- Feds already have a statute for harmful drugs
 Other State Interest: Uphold prohibition because contraceptives are immoral.
o Cannot uphold on these grounds
 Conflicts fundamental human rights
 COURT: If under Griswold, married have the right, then unmarried have the
same right to privacy. PROVIDING DISSIMILAR TREATMENT FOR
MARRIED PERSONS AND UNMARRIED PERSONS VIOLATES EQUAL
PROTECTION CLAUSE OF THE 14th AMENDMENT.
 King v. Smith- Alabama case that declined AFDC benefits to mothers if they engaged in
sexual relationships with an able-bodied man. A able-bodied man was considered a stand-
in for the father. S.C. says that Alabamasubstitute father rule violated Congressional
intent that children in such as situation remain eligible for AFDC benefits despite
Alabama’s interest in discouraging illicit sexual behavior and non marital births.
o Right to Liberty in matters pertaining to sex
 A claimed liberty must be deeply rooted in the Nation’s history and tradition and implicit
in the concept of ordered liberty such that neither liberty nor justice would exist if it were
sacrificed.
 Bowers v. Hardwick- Court upheld Georgia Controversial sodomy law outlawing
homosexual intimacy
 Overtured: Lawrence v. Texas- Majority uses Due Process of 14th Amendment
 Griswold recognized a right to privacy to make certain decisions regarding
sexual conduct and it extends beyond the marital relationship per Eisenstadt v.
Baird.
 Can state use power to enforce traditional views of family and morality on
society as a whole to through operation of criminal laws: COURT: Constitution
protects right to privacy in personal relationships
o Liberty gives substantial protection to adult persons in deciding how to
conduct their private lives
o Criminal codes do not punish for consensual sexual relations
o 13 states have sodomy laws on the books, and only 4 enforce them.
 Rationally related to legitimate state interest (OCONNOR)
o Law inhibits personal behavior
 Freedom to Marry The Person One Loves: Race
o CASES: Denial of Enslaved
o In Re Campbell’s Estate – Children from enslaved marriage challenge a Will
 Is a marriage by enslaved persons legally valid?
 Conflicting testimony on the marriage for Basil and Mary
 Some say married
 Some say he was single
 He left MO for California and never looked back
 Didn’t write Mary or write back to Son Wyatt when Wyatt said he was h is
father
 Married 2x after Mary
 Mary and Basil marriage was a slave marriage
 Some say needed master’s permission
 Some say just cohabit
 No such thing as negro divorce
o If sold, can take up a new wife
 LAW: Slave incapable of marriage – US v. Roach
 Incapable of contracting and marriage is a contract
 Did not have capacity, could terminate at will or by master
o MOCKERY – tolerated concubinage
 Custom among slaves but distinct from laws that govern free
marriages
 Why
o Slaves had no freedom to consent
o duties of the husband and wife were
incompatible with duty owed to the master -
 inconsistent with master’s superior
claim
o In traditional marriage, husband and wife
have rights and duties – page 75 at top
 If after emancipation, continued in such a manner, then would
be considered a marriage
 Reasoning:
o Took up together with master’s permission and knew it was temporary.
o Basil left Missouri and never returned -1854
 Took no steps to bring Mary or Children
 Stopped all communication
  1866 married in California while Mary still alive
 Acts consistent with knowing they were not husband
and wife

Equal rights example: Stanley on page 27 (Look at how worded to word your equal rights argument)

Cases: RACE & Marriage

 Marriage as fundamental right
 Loving v. Virginia – Due process and Equal Protection Clause Argument
 STRICT SCRUTINY – Compelling state interest and narrow tailoring of law to meet that
interest
 Facts
o White could only marry another white
o Richard Loving, Caucasian, married Mildred Jeter, African American in
DC
o Moved to VA
o Charged with violating VA ban on interracial marriage
o Sentenced to a year- suspended if left and did not return for 25 years.
o Left and sued
 Court
o VA upheld based on Naim v. Naim
 State argues: Legitimate state purpose: Preserve Racial
Integrity, prevent corruption of blood, prevent a mongrel breed
and the obliteration of racial pride
 State’s Regulation by way of 10th Amendment – States
regulate marriage (State police powers)
 Any powers not given to the federal government or
withheld from the states are reserved for those states
or the people
 Says Prohibition is neutral: Applies equally to whites and
African Americans.
 Both are punished to the same degree SO…no
discrimination.
 S.C.
o State powers are not unlimited
o Equal application of a statute that is discriminatory on its face is not
enough to say it does not violate the 14th Amendment.
o Rational basis is not the test (Legitimate state purpose and rationally
related)- no sir…says court.
 Why: Because the distinction of race is on the face of the
statute. – Strict Scrutiny
 There is no legitimate purpose that justifies this classification.
 EQUAL PROTECTION Look at cases: (1) The Court rejects distinctions based
solely on ancestry – odious to a free people whose institutions are founded upon
the doctrine of equality. (2) Most Rigid scrutiny- per Korematsu. (was shown to
be necessary the accomplishment of some permissible state objective
independent of racial discrimination)
 DUE PROCESS Look at cases: Marriage is base civil right – Fundamental right
is subject to strict scrutiny.
  Can the Right to Marriage be abridged:
o Zablocki v. Redhail
 A statute restricting marriage based on failure to pay child support is unconstitutional.
 state interests in ensuring support for out-of-custody children is sufficiently
important, but denying marriage is an unnecessarily burdensome tactic.
 Procreation in marriage
o Dobbs v. Jackson
 States arena to legislate abortion
 Constitution does not guarantee a right to abortion
o Moral disapproval of a group is not a legitimate state interest
Nonmarital Cohabitation (governed by contract law)
➢ There are Legal alternatives to marriage such as:
■ Civil union/Registered Partnership (register as domestic partners)
● Began around 2000
● State specific with no federal regulation
● Primarily used to provide legal clarity and protection for same-sex couples
◆ Prior to Obergefell
● Can’t be dissolved by simple consent
◆ Legal partnership
■ Common Law Marriage
● Discussed below in marriage
■ Some chose none of these alternatives and choose
● Formal cohabitation (an entity of contract law)- Express Contract
● Informal cohabitation
 Cohabitation/ living together is shorter in duration than marriage and marital relationships (some) are preceded
with nonmarital cohabitation
➢ Legal consequences of Cohabitation
■ Criminal liability/immunity
● Not afforded to cohabitants
■ Tort claims
● No immunity to bring tort claims against one another
■ Domestic violence
● Some jurisdictions don’t protect against cohabitation violence
■ Health insurance
● Not covered for a co-habitant
■ Employment benefits
● Defaults are to spouse and children
◆ To protect co-habitant- must list this individual
◆ Some types of retirement accounts and life insurance do not allow
designation to parties other than spouse or children
 Before Marvin v. Marvin, couples didn’t live together without marriage. Marvin v. Marvin was about
promoting equity as there is no reason to deny the cohabitation equal division of property when the couple
lived together with the same expectations as a married couple would/could.
➢ Marvin v. Marvin → Non-marital cohabitation agreements will be recognized by the court, even
where there is no explicit contract but is instead implied by the conduct of the parties.
■ Provisions of the Family Law Act DO NOT govern the distribution of property acquired
during a nonmarital relationship
 ■ Courts should enforce EXPRESS CONTRACTS between nonmarital partners except to the
extent the contract is explicitly founded on the consideration of meretricious sexual services
■ Absence of an express contract, courts should inquire into the conduct of the parties to
determine whether the contract demonstrates an implied contract
● Adults who voluntarily live together and engage in relations are nonetheless as
competent as any other to contract respecting their earnings and property rights;
They can agree to pool their earnings and hold all property required during the
relationship as community property; Parties can order economic affairs as they
choose to, and no policy precludes the courts from enforcing those agreements
 After Marvin
➢ Many states require an express rather than an implied contract
➢ All but two states recognize some right to contract between cohabitants
■ Georgia and Illinois are the exception
 Alternative Theories for Recovery in Nonmarital Cohabitation Cases
i. Doctrine of quantum meruit – the general theory of relief for the value of services
rendered when they are rendered with the reasonable expectation of payment. Payment
for services rendered thus far. Two prongs:
1. Requires a Service Provided – (Example) Evidence of this is that she acted as a
homemaker for 7 years.
2. Value of the services provided – (example)You might need to bring in a
professional butler or maid service to say what the value of the services
performed was. He could also look at the relief payments that he was continuing
to give her after the split for a period of about two years as evidence of the value
of the services. This is evidence that he has acknowledged that she was worth
this amount during the relationship.
ii. If you can prove any kind of K, you never resort to quantum meritum.

1. Joint Venture
2. Constructive Trust: one party has taken legal title to property under unjust
circumstances
3. Partnership
4. Equitable remedies under K contract
a. Constructive trust
b. Resulting in trust
c. Unjust enrichment/Restitution
i. Plaintiff confers benefit on D
1. Voluntarily conferred a benefit
2. Officious intermeddlers
a. Voluntarily, without request, interferes in
another person’s affairs without being asked
or legally obligated to do so, then seeks
compensation for their actions.
b. Think through
i. Recipient resists payment because
services were unrequested?
ii. Social interest in encouraging the
transaction.
iii. Is intervention justified even w/o a
contract?
3. Exception
a. Protection of another’s property
i. Imminent danger
 ii. The claimant had reason to believe
the owner would want the service,
and there is no practical way to
negotiate in advance for payment
b. Emergency Services (limited to
professionals – doctors & nurses)
i. Restitution for reasonable and
customary price of services
ii. Contract implied by law, enabling
recovery
iii. Presumed to be beneficial
c. Necessaries (performs duty of another to
furnish necessaries)
i. Doctor renders medical service for
a child
ii. Parent had a duty to care for child
iii. The doctor was not officious
intermeddler because rendered
services to prevent permanent
injury when parent neglected duty
to do so
4. Volunteer
a. Voluntarily provide funds for repayment of
defendants' debt and cannot recover from
them under the theory of restitution
5. Unsolicited Benefits
a. Unjust enrichment

PRENUPS

I. Prenuptial/Premarital Agreements
a. Confidential relationship – there is a presumption that people who are about to marry are in a
confidential relationship. This means they rely on one another in a way outside of the typical
contractual perspective.
b. Statute of frauds – requires promises made in contemplation of marriage, other than promises to
marry, to be in writing and signed by the party charged.
c. Postnuptial agreements – test for enforceability is similar to prenuptial. In some states, they are not
enforceable.
d. Want both parties to be represented by counsel. Serve the Prenup early so parties have time to look
over it and get advice of counsel. Attorney mails agreement by certified mail if other party is not
represented by counsel. Want to remove yourself as the attorney from the situation as much as
possible and let the parties handle it. If the other party wants to present it themselves, let them.
e. Elements:
i. Offer and Acceptance – offer to marry and acceptance of that offer to move concept
forward. Mutual assent is a subset of offer and acceptance.
ii. Consideration – when it comes to prenuptial agreements, consideration is almost
meaningless. No cases are based on consideration or the lack thereof because the
agreement to be married is determined to be the consideration.
iii. Capacity – Must have at least two parties with the capacity to contract. Forms of
incapacity:
 1. Minority - Contracts of a minor are voidable up until the point where they reach
the age of majority, which differs from state-to-state, and for a reasonable time
thereafter.
a. If you do draft a voidable contract, explain to the client why it will be
voidable and if they still insist on you drafting the contract, have them
sign a separate document stating that you disclosed to him the issues,
they understand them, and have them sign it.
2. Mental - If either party is so mentally deficient that they cannot understand the
character and nature of the document they are signing, then the prenuptial
agreement is void.
iv. Contract must be for a lawful purpose - Now, every state permits prenuptial agreements
and often encourages them because it helps to resolve divorce situations instead of
dragging them through court. The contract sets out what happens in divorce before you
even get there. A few scenarios where it would be unlawful:
1. Any contract will fail for its lawful purpose if it is viewed to be in derogation of
marriage.
a. Derogation of marriage – encourages divorce. Cannot have anything in
the prenuptial agreement that makes it in someone’s best interest to get
divorced. This would violate public policy. No active inducements to
terminate marriage. Example: wife gets 5 million in event of divorce.
2. Cannot contract away the interest of minor children.
v. Statute of Frauds - Prenups must satisfy the statute of frauds and must be in writing and
signed by the party to be charged.
f. Factors for determining the validity of agreement:
i. Full and fair disclosure of assets – must have Exhibit “A.” Exhibit “A” includes a list of
the assets of the person being protected by the Prenup. Things included on the list are any
real property they own or have some interest in, savings accounts that he wants to protect,
investments, retirement accounts, etc. Only things of insignificant value should not be
included. This list must communicate to the other party what they will be giving up rights
to when they sign at the bottom. Need to be transparent to the other party. Must tell them
what is there and assign a fair market value to each of these assets. Anything that is left
out might cause the entire prenuptial agreement to fail. This can be the biggest mistake
that a party can make. It is also a mistake to knowingly undervalue an assets. Exhibit “A”
validates the prenuptial agreement. AND/OR
ii. Fair and equitable; and opportunity for the other party to obtain advice of independent
counsel. This part of the test isn’t required in every state. In Alabama, if you satisfy the
Exhibit “A” requirements and everyone can look at it and see that it is fair and equitable,
then nobody has to determine walk the difficult line of determining whether or not the
agreement is fair and equitable.
g. Uniform Premarital Agreement Act § 6 (2001)
i. (a) A premarital agreement is not enforceable if the party against whom enforcement is
sought proves that:
1. (1) That party did not execute the agreement voluntarily (undue influence and
lack of independent counsel weigh on voluntariness); or
2. (2) The agreement was unconscionable when it was executed and, before
execution of the agreement, that party:
a. (i) Was not provided a fair and reasonable disclosure of the property or
financial obligations of the other party;
b. (ii) Did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party
beyond the disclosure provided; and
i. Cannot place a person in a position of coercion or duress.
c. (iii) Did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party -
Unconscionable
 ii. (b) If a provision of a premarital agreement modifies or eliminates spousal support and
that modification or elimination causes one party to the agreement to be eligible for
support under a program of public assistance at the time of separation or marital
dissolution, a court, notwithstanding the terms of the agreement, may require the other
party to provide support necessary to avoid that eligibility
1. If forced into welfare posture, court will disregard the contracts terms stating
that the other party doesn’t have to provide support for them and will be
awarded alimony. Don’t want to agree to pay her anything more than the amount
she would receive from the government. That is what you include in the
agreement.
2. Alabama doesn’t follow this position. It doesn’t matter what shape they are in
after the divorce, if they have contracted away spousal support completely, none
will be awarded.
iii. (c) An issue of unconscionability of a premarital agreement shall be decided by the court
as a matter of law
h. In order to invalidate an agreement, it must prove that it was signed involuntarily (coercion or
duress) or it was unconscionable.
i. Voluntary
1. There are number of factors to consider to determine whether it is voluntary.
Specifically, look at whether the evidence indicates coercion or lack of
knowledge. Other factors: proximity of execution of the agreement to the
wedding, surprise in presentation of the agreement, presence or absence of
independent counsel or option to obtain but waived, inequality of bargaining
power some cases indicated by the relative age and sophistication of the parties,
whether there was full disclosure of assets, and the parties’ understanding of the
rights being waived under the agreement or at least their awareness of the intent
of the agreement.
ii. Unconscionable
1. Time frame is that is was unconscionable when it was SIGNED.
2. Was nor provided a fair and reasonable disclosure of the property or financial
obligations of the other party;
3. Did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the other party beyond the disclosure
provided; and
4. Did not have, or reasonably could not have had, an adequate knowledge of the
property or financial obligations of the other party.
II. Simone v. Simone
a. Wife was presented with Prenup on eve of wedding and not given opportunity to seek counsel. She
didn’t protest the agreement or say that she wanted to seek advice of counsel. She was a nurse, but
quit working after getting married. Defendant’s attorney presented witness testimony that plaintiff
knew of the Prenup previously. The defendant’s prior attorney even came forward saying that
there were changes made to the agreement to meet her needs.
b. Prenups are contracts and should be evaluated under the same criteria. The presumption that
prenups shouldn’t be enforced because of the presumption that women were unequal, uneducated,
and uninformed is no longer valid. Absent fraud, misrepresentation, or duress, spouses should be
bound by the terms of their agreements. Contracting parties are typically bound by their
agreements, without regard to whether the terms were fully read and understood. Ignorance of the
law is no excuse.
c. Court is not going to get into determining whether a Prenup is reasonable. This interfered with the
integrity to contract if parties don’t believe agreements will be strictly enforced. Circumstances
change and what is reasonable at one point might not be reasonable at another.
d. Duty of disclosure – full and fair disclosure of the financial positions of the parties is required.
Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial
agreement may be asserted. The disclosure doesn’t have to be exact, just “full and fair” consistent
with traditional principles of contract law.
 e. If an agreement provides that full disclosure has been made, a presumption of full disclosure
arises. If a spouse attempts to rebut this presumption through an assertion of fraud or rebut this
presumption through an assertion of fraud or misrepresentation then this presumption can be
rebutted if it is proven by clear and convincing evidence.
f. Case stands for the importance of getting your evidence out there through evidence or
reliable witnesses. Might be called to the stand to defend prior contracts you have drafted
where you are the most important witness there. Always pay attention to what evidence and
people you can bring in to court to give testimonial evidence in support of your position.
Witnesses are necessary!
i. Case feeds into UPAA § 6(a)(2) that she was aware of the agreement, knew what it said,
and negotiated on it. There were witnesses to support the prongs of this test.
III. Marriage of Rudder and Rudder
a. On eve of wedding, wife asked that her attorney look over Prenup. Prenup was signed the night
before they left for Vegas. Wife’s attorney never had a chance to review and the K didn’t include
amount for the value of property husband owned and also left out a few things. Agreement
included the clause that “each party keeps the property in his or her own name, and there can be
no spousal support.” The agreement was signed at his attorney’s office. She was also very specific
in that she wanted HER attorney to look over the document or to be there during the signing to
protect her interests. She reasonably thought he would be there and he wasn’t. Husband told her
that she should go ahead and sign it and the attorney will take care of it for both of us.
b. It was unconscionable – there was no values listed for the assets in Exhibit “A.” There was a
defective, at best, Exhibit “A.” No fair market values were included. Howell’s opinion on why she
won was because of the defective Exhibit “A.” She must meet the 3 unconscionable factors.
c. A premarital agreement is not enforceable, and thus unconscionable, if the party against
whom enforcement is sought provides that:
i. The party did not execute the agreement voluntarily; or
1. Number of factors to consider to determine whether voluntary. Specifically, look
at whether the evidence indicates coercion or lack of knowledge. Other factors:
proximity of execution of the agreement to the wedding, surprise in presentation
of the agreement, presence or absence of independent counsel, inequality of
bargaining power-in some cases indicated by the relative age and sophistication
of the parties, whether there was full disclosure of assets, and the parties’
understanding of the rights being waived under the agreement or at least their
awareness of the intent of the agreement.
ii. The agreement was unconscionable when it was executed and, before execution of the
agreement, that party:
1. Was nor provided a fair and reasonable disclosure of the property or financial
obligations of the other party;
2. Did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the other party beyond the disclosure
provided; and
3. Did not have, or reasonably could not have had, an adequate knowledge of the
property or financial obligations of the other party.
d. A party against whom enforcement of a premarital agreement was sought only could raise
the issue of unconscionability, that is, the substantive unfairness of an agreement, if he or she
also could demonstrate lack of disclosure of assets, lack of waiver of disclosure, and lack of
imputed knowledge of assets.

Marriage (Elements: Licensing (Affidavit in Alabama), Ceremony, Health Screening, Consent (voluntary,
meets age requirement, and competent)

 The right to marry is a fundamental constitutional right established in Meyer v. Nebraska

 Any statute/regulation passed making it more difficult to marry; must withstand strict
scrutiny
  A license requirement is a nominal price, so a state’s excuse of insufficient funds
won’t withstand strict scrutiny as there must be a compelling government
interest. (EXAMPLE OF WHEN IT’S NOT A COMPELLING STATE
INTEREST)
 States regulate:
o institution of marriage by determining:
 who may marry, usually the Unmarried, Not close in familial relation, with consent, and
be of minimum age. State can regulate how they may marry.
 States can regulate the legal benefits and obligations and how they are terminated.
o Usual process for a formal Marriage in most states:
 obtain a marriage license and exchange vows in a civil or religious ceremony and consent
1. Why: As a society, we want people to be married by ceremony. We want them to
do this primarily because there is a public record paper trail. They go through
the formalities; if the FBI is researching them and wants to know everything
about that person, they will find out quickly if they have been ceremonially
married. Ceremonial marriages don’t typically lend themselves to fraud, which
is important to use as a society.
2. Although most states impose a waiting period between the date the marriage license
is received and the actual ceremony, a court can waive the waiting period in
extraordinary circumstances.
 Health Screening
 Some jurisdictions require a health screening for disease
 ALABAMA-abandoned that, and people now go to the probate court and turn in
affidavits with papers and are married that moment; THAT’S NOT A LICENSE.
 In Alabama, marriage is achieved by (not by obtaining a license):
o Fill out the Marriage Certificate (affidavit)
 Notarize and sign
 THEN MARRIED without a ceremony
o NO Common Law Marriage in Alabama
o No waiting period
o GOOD FOR 30 days!
o GOOD FAITH AND ESTOPPEL: In most states, any defect in the license or ceremony does not
affect the validity of the marriage so long as the parties were acting in good faith
o Marriage by ESTOPPEL: (ONE PARTY NOT ACTING IN GOOD FAITH)
 We are expected to know and NEED to know parties can be married by estoppel.
This occurs when a couple enters into a ceremonial marriage, but there is an
impediment to this marriage that one of the parties doesn’t know about. The other
party typically does. Typically have one innocent party that has no idea the marriage
isn’t legally valid. They live together as husband and wife. Typically, the party that
knew of the impediment may come forward and say that you can’t divorce me or
take my property because we were never married. This is when the party becomes
estopped to deny the marriage.
o OTHER PROCEDURAL DEFECTS (CEREMONY OR LICENSING):
 ANALYZE REQUIREMENTS FOR MARRIAGE THEN DEFECT:
 Generally, courts readily forgive failure to satisfy the procedural requisites of marriage,
especially inadvertent errors like this one (as contrasted with a deliberate attempt to
sabotage the marriage’s validity).
 Furthermore, the longer such a marriage has lasted, the less likely a court will annul it.
o CONSENT ELEMENTS: Must have CONSENT TO marriage
 AL Code 30-9-1(b)(2)
o The affiant is not currently married
 o The affiant is at least 18 years of age
 The affiant is at least 16 and under 18 years of age and has the
consent of a parent or guardian
o The affiant is legally competent to enter into a marriage
o The parties are not related by blood or adoption such that the marriage
would violate 13A-13-3
o The affiant is entering into the marriage voluntarily and of his or her
own free will and not under duress or undue influence

o Meet minimum age requirements for the jurisdiction

 AL Code 30-1-4
o A person under the age of 16 is incapable of contracting marriage
 Until 2003, the minimum was 14
 AL Code 30-1-5
o A person intending to marry is at least 16 years of age and under 18
years of age and has not had a former wife or husband; the consent of a
parent or guardian of the minor to the marriage shall be required
o Evidence of consent shall be in the form of an affidavit signed by a
parent or guardian, notarized, and filed with the probate court.
o Marriage is presumed to be valid if valid at the time and place where it was performed (Lex Loci-
Law of the place)
 Why: Fundamental right
o Liberty to be married
o Liberty to travel
o Stability of marriages in US
 BUT: state argument: may say…void
o Against public policy such as incest
o Circumvent incest law
o State has sovereignty

Common Law Marriage

a) Common Law Marriage (Capacity, Intent, Ceremony or in lieu of ceremony: cohabitate and hold self out as
married):
(a) Some states allow common-law marriages but most jurisdictions have done away with it
(i) Alabama is not one of those states
(2) Not favored by law because of likelihood of fraud, perjury and abuse of system and complicates
probate
(3) Requirements
(a) Capacity to marry
(b) Intent to marry – Can be proven circumstantially
(i) Consummation is an indication of intent
(c) In lieu of ceremony, there must be an exchange of promises (does not have to be in front of a
officiant)
(i) proved by circumstantial evidence
1. cohabitation
a. No minimum time period to live together
2. plus, holding out as married
a. Wearing rings
 b. Observing yearly anniversary
c. Purchase property together
d. Contract
e. Must look for a paper trail;
f. Joint tax returns: filed as husband and wife
g. Borrowed money as a married couple
h. Insurance policies
i. POA
j. Witnesses
(4) Marriage is recognized in a state that doesn’t recognize common law marriage if it was valid in the
state of common law marriage
b) All states will honor common law marriage if the marriage was created in a state that recognizes common
law marriage. As of 2017, Alabama no longer has common-law marriage. ALA Code § 30-1-20.
i) ALABAMA: Common law marriages prior to 1/1/2017 are still honored, but not those after

PROXY MARRIAGE:

A proxy marriage is a marriage in which an agent or proxy stands in for one or both spouses if they are not able to attend the
marriage ceremony (the third requirement for a lawful marriage). As long as all the marriage requirements are met, a proxy
marriage is a valid marriage.

Unwinding Marriage (ANNULMENT & LEGAL SEPARATIONS):

Types of restrictions on marriage (IMPEDIMENT TO MARRIAGES)

 Marriage defects (See annulment below):

 Void (VOID WITHOUT A COURT ORDER)
o Marriage is invalid from the start
o Marriage cannot be valid
o Marriage is not recognized by state
o Reserved for more egregious taboos
 Voidable (creates a necessity for annulment)
o Harmed spouse can seek court order nullifying marriage
o Court has discretion
o If no order for annulment is obtained, marriage is recognized as valid

Annulment

◆ Putting parties back in the position they were in prior to the marriage
◆ It’s as if the marriage never existed
◆ The law does not favor annulment
● Extraordinary cause of action (very hard to achieve)
○ Historical roots of resistance to annulment
◆ Illegitimizing children
● Children of annulled marriages were considered a child of no
one
◆ Historically was an issue on how to divide assets/liabilities incurred
during the marriage
● Benefits now:
 ○ Property that each party brought into the marriage
goes back to the party regardless of how it was used.
If they brought it in, they take it back.
○ If they have been married long enough to acquire
property in the marriage, divided on what is equitable
between them.
○ No permanent spousal support can be awarded in the
event of an annulment.
◆ Alabama – term is alimony, not spousal
support
◆ Historically, marriage was favored, so there were religious objections
➔ For a marriage to be annulled, there must be a specific impediment to the marriage present at the time the
couple contracted the marriage.
● Cannot be something that occurred after the marriage.
○ A person seeking an annulment must prove through clear and convincing
evidence,
Impediments:
◆ VOID: the marriage due to public policy issues (ABSOLUTE RESTRICTIONS). TALK ABOUT
PUTATIVE SPOUSE IN CASE THERE HAPPENS TO BE PROPERTY THAT NEEDS TO BE
EQUITABLY DIVIDED.
● Insanity
○ If at the date of the marriage (assuming ceremonially), one party to the marriage
was so mentally impaired that they cannot appreciate the character and nature of
entering a marriage, then that marriage is void. Howell has never had anyone
come into the office and seriously claimed they needed an annulment because
they married someone who is that mentally impaired. Won’t see this often.
● Incest - –
○ May be either too closely related by blood/consanguinity. The legal concern
against allowing two people too closely related by blood to marry is due to the
enhanced possibility of serious birth defects for their offspring.
○ Statues change from state to state. Statutes that don’t change:
◆ Father cannot marry daughter or granddaughter, or wives
granddaughter.
◆ Siblings cannot marry.
○ In some states, considered incestuous for first cousins to marry. Alabama does
NOT consider this to be incestuous. You can marry your first cousin.
○ Alabama – incest is also a class C Felony. There is the possibility for criminal
punishment. If they are questioned about it, should plead the 5th. However, it
usually isn’t reported. Nobody wants to go there and call the police if you know
your neighbors are incestuous.
○ Affinity – couples may be too closely related by affinity. This means that in
some states there may be prohibitions against marrying someone you are only
related to by marriage. The legal concern against allowing people closely related
by marriage to marry is that it destroys the familial relationship.
○ Alabamas. 13A-13-3
◆ Commits incest if he or she marries or engages in sexual intercourse
with a person he knows to be
● Ancestor or descendant by blood or adoption
● His or her brother or sister of whole or half blood or by
adoption
● His or her stepchild or stepparent, while the marriage creating
the relationship exists
 ● His or her aunt, uncle, nephew, or niece of the whole or half
blood

● Bigamy
1. These issues are ALWAYS about money!
2. Presumptions:
a. Law presumes that people do not commit bigamy;
b. Some jurisdictions presume the first marriage is valid
c. However, the majority view: When a person has more than one spouse,
the law favors the one that is last in time (Majority view);
i. In order to overcome this presumption, burden is on the party
seeking to overcome the presumption to prove through clear
and convincing evidence that:
1. They were lawfully married; and
2. They never dissolved their marriage.
ii. If they overcome this presumption, they can prove the first
marriage is the one that is valid over the last in time.
1. This is done through questioning the other party
through depositions. Can be very simple. If they are
not alive, can be more difficult to prove.
iii. APPLIES TO Common law marriage: Common Law Marriage
must be established, to the satisfaction of the court, that they
met the various requirements of common law marriage.
Common law marriage has equal validity as a ceremonial
marriage once it is proven.
3. AL Code 13A-13-1
a. Intentionally marrying someone else while still legally married to
another person- Inside of or outside of Alabama
i. Intentionally contracted or pretended to contract a marriage
with another person
ii. The defendant had a living spouse
iii. The defendant did so intentionally
4. Chandler v. Central Oil Corp. Inc. – Kansas 1993
◆ Mr. Chandler liked the ladies…
● Woman 1 – not married, had a child out of wedlock
● Wife 1 – legally married and had no children
● Wife 2 – ceremonially married her prior to his divorce being
finalized from wife 2 and they had a child together. Court
determined that this was a common law marriage because they
held themselves out to be married after his divorce from wife
1 was final.
● Wife 3 – legally married after divorce from wife 2 was final
and had one child
◆ ALJ determined that wife 2 was the surviving spouse and entitled to his
worker’s compensation benefits. This determination was appealed 3
times by wife 3. Court erred in failing to require wife 2 to overcome the
presumption of validity of her marriage, which was last in time. Wife 2
must rebut with clear and convincing evidence and every possibility of
the validity of marriage 2 must be negated.
○ Gomez v. Windows on the World – NY 2005
◆ 2 marriages in 2 countries. After husband was killed in 9/11, wife 2 was
determined to be the surviving spouse and was awarded worker’s
compensation benefits based on the presumption that the marriage last
in time was valid. He was previously married and had children from
 that marriage in Columbia in which he sent monetary support to for
awhile after establishing himself in the US. Wife 1 was able to rebut the
presumption that his second marriage in the US was the valid one with
Columbian legal documents showing she was still legally married to
him under Columbian law. Wife 1 was able to rebut this presumption
by clear and convincing evidence and was determined by the court to
be the surviving spouse of the deceased and was awarded his worker’s
compensation benefits.

◆ Voidable grounds:
● Fraud must be material and go toward the essence of the marriage; ONLY voidable by 1
of the parties
○ What goes to the essence of the marriage?
◆ Misrepresentations of intent to have sexual relations
● Janda v. Janda (Below)
○ Any kind of deceit going towards having children (Below)
◆ Haacke v. Glenn: extends the meaning of fraud going to essence of the
marriage (fraudulent concealment of a criminal record resorted in wife
losing her job)
● Must go to present not future facts
● Concealment must be material to such a degree that deceived
party known of fraud, he/she wouldn’t consent to the marriage
○ ANNULMENTS ARE NOT AUTOMATIC!!!! PARTY MUST MOVE FOR
THE ANNULMENT!
◆ WHY ANNULMENT ALLOWED FOR FRAUD: has to do with one
of the fundamental reasons people get married and the party
perpetrating the fraud never intended to fulfill commitment
● Example: Married to get share of inheritance Jackson v. Indus
○ Mere representation as to social position, rank, fortune, manners and disposition
furnish no grounds for declaring a marriage contract void. Williamson v.
Williams (D.C. 1910).
◆ Example (not fraud):
● Guy says I’m a millionaire- In Re Marriage of Meagher;
● Woman’s failure to tell husband still romantically involved
with another man was not fraud -Chudnow v. Chudnow;
● Man creates false portrait of his character by saying he was
partner in an accounting firm and was a war hero and not
telling his wife attempted murder of first wife – no FRAUD –
Summers v. Renz;
● Sterilization after marriage: If surgery is completed after
marriage, you might not be able to get an annulment.
○ However, might be able to build a case that it was her
intention prior to the marriage to have this surgery in
order to prove it should be annulled v. divorce. Might
be able to prove case by deposing/sending
interrogatories for the medical records and
conversations with doctor concerning procedures
prior to marriage.
◆ Fraud Examples
 ● Saying that you want children prior to marriage and finding
out later, after having conception issues, that spouse had
sterilization procedure prior to the marriage is fraud going to
towards the essence of the marriage.
● Husband knows bride is pregnant, but finds out it isn’t his and
that the wife knew it wasn’t his, is fraud going towards the
essence of the marriage.
● Consumation: Janda v. Janda – Alabama 2007
○ Wife was from US, husband from Czech Republic.
The husband refused to consummate the marriage.
Wife wants annulment and claims that he never loved
her and only married her to stay in the US and to get
a green card. Husband wants divorce, not annulment
so that his ability to stay in the US is between him
and customs, if annulment, he will be deported
immediately. Wife bears burden of persuading the
court that at the time he married her, he had the intent
never to consummate the marriage physically.
◆ This is the bullseye fraud going to the
essence of the marriage case. Court says the
parties look more like roommates. Fraud in
the essence must be proven at the time the
marriage is entered into. She gets her
annulment and he is deported back to the
Czech Republic
● CONVICT: Haacke v. Glenn – Utah 1991
1. Couple married ceremonially. At the time of the
marriage, wife was an attorney for the state
department of corrections and was let go from her job
because she married a convicted criminal. Husband
lied to her about why he was going to Alabama and
what he was using money for. Wife wants annulment
so she can get her job back once the conflict-of-
interest is cured. Husbands only possible argument is
that concealment doesn’t go to the essence of the
marriage – he didn’t argue this, but he would
probably loose anyway.
a. Not knowing that your spouse is a convicted
felon would deeply disturb the other party.
This is something that should be disclosed
prior to entering into the marital
relationship. Every woman should have a
husband they can be proud of if they so
choose. This is fraud going to the essence
and the annulment is granted.
● Intoxication: If the petitioner can prove intoxication of drugs at the time of the marriage,
so they couldn’t appreciate the significance of their actions
○ Difficult to prove; must go back to the date to prove the state; difficult to prove
the intoxication was significant
○ They must attempt to present evidence of how drunk or under the influence they
were and that they didn’t have the intent to be married. There is a time period
requirement. Otherwise you might have a defense for ratification.
● Marriages contracted under duress; person would have to be involuntary
○ Why : Because one of the elements of marriage is CONSENT
 ○ Not very common these days. This was getting a lot of legal play in prior
decades when people were forced into shotgun weddings. When there was a
pregnancy and the girl’s family used to go with to the guy’s home with shotguns
to make him marry her.
○ Duress occurs when one person commits a wrongful act that overcomes the free
will of the other to resist.

● Underage marriages: Youth

○ YOUTH MAY MUST OPT TO VOID THE MARRIAGE (PERSON WHO
WAS UNDERAGE)
○ IMPEDIMENT GOES AWAY IF CHOOSES TO REMAIN MARRIED AFTER
REACHING THE AGE OF MAJORITY IN THE JURISDICTION
◆ CONSIDERED RATIFIED IF CHOSE TO STAY MARRIED!
○ AL Code 30-1-4
◆ A person under the age of 16 is incapable of contracting marriage
● Until 2003, the minimum was 14
○ AL Code 30-1-5
◆ A person intending to marry is at least 16 years of age and under 18
years of age and has not had a former wife or husband; the consent of a
parent or guardian of the minor to the marriage shall be required
◆ Evidence of consent shall be in the form of an affidavit signed by a
parent or guardian, notarized, and filed with the probate court.
● Unsound mind
○ If either party is so mentally deficient that they cannot understand the character
and nature of marriage
● Consent obtained by force
○ See CONSENT – see consent as a required element for marriage up above
● Lack of physical capacity
○ SEE CONSENT – see consent as a required element for marriage up above

Defenses to Annulments

1. Full knowledge of impediment to the marriage and consent

a. Must by its very nature take place before marriage
2. Ratification of the marriage
a. Occurs after marriage; party discovers impediment that existed and forms an intent to continue the
marriage
3. Laches (UNREASONABLE DELAY CAUSING HARDSHIP)
a. Equitable defense; when plaintiff has sat upon the claim so long that defendant is prejudiced in
ability to defend themselves when the claim is brought

I. Legal State of Separation

a. Common law concept that differs from state-to-state. Alabama allows legal separations. However,
don’t see many of them anymore. Legal separations are rare in our society because they put you in
marital limbo. They are not free to re-marry as they are still legally bound to their spouse.
b. Legal separation does not divorce the couple in the eyes of the law. It does set their affairs in order
so that they are legally bound to fulfill certain obligations to one another.
c. It can include:
i. Support from spouse – must draft into document how much and when
ii. Who continues to live in marital home
 iii. Who pays mortgage
iv. Who has custody of children
v. The more it includes, the less issues they will continue to have.
d. Alabama
i. If wife petitions for legal separation, you can draft the documents, but if the husband
could counter-sue for divorce. If husband files for divorce, the over majority of courts in
the state will grant the divorce based on incompatibility of the parties.
ii. Only time you see a legal separation in this state trump a divorce is when the other
spouse will go uninsured. Don’t want to turn people away from medical insurance. If she
is on her husband’s group policy and can’t get medical insurance on her own, it might be
granted. Especially if the wife has had cancer and might be uninsurable. This is
something you need to ask when a client comes in seeking a divorce. It might be
something they haven’t considered and a divorce might be the last thing the person needs.
Under this circumstance, court might grant legal separation. Might need legal separation
over a divorce. Might also be true in other states.

FAMILY RELATIONSHIPS

Putative Spouse Doctrine- Minority of Jurisdictions (rare situations)- REMEMBER IF YOU

HAVE A VOID MARRIAGE

 Treat as spouse even though not legally a spouse

o Factors
 Believes in good faith they are the spouse
 Had marriage ceremony
 Lived as husband and wife
o Helps in
 Void marriage
 Equitable remedies
 Innocent spouse
 This is a MINORITY RULE
o If not available in the jurisdiction, then treated as if never married (never in the CONTRACT)
 May be no remedies for unsuspecting spouse and NO fair division of assets
 No entitlement to spousal support
 No entitlement to Half equity
 No Division of debts
 No entitlement to alimony

Families Roles Rights and Responsibilities

a. Family Setup
● Traditionally - husband and wife are one person in law (Blackstone)
● Woman no longer exists, and rights are incorporated into her husbands
● Coverture - married woman has no legal capacity to make contracts or sue, Husband is
responsible for her crimes and torts, as well as his own.
● Known as necessaries doctrine: Husband is responsible for all wife’s support.
○ If actions were immoral, then husband did not have to pay
● Problematic from a human rights stance because a woman is treated like a child.
● Property was under Coverture historically
 ○ Belong to father and then a wife belongs to husband. Has disability inn
property ownership
● New Property Regime
● In Alabama, the property is owned separately
● Must affirmatively take steps to make marital property
● Joint tenancy
● Tenancy by the entirety
● Tenancy in common Law
● Cannot contract with a spouse because you are one person, no torts against each other,
Jointly liable for financial commitments.
● Consortium - husband’s right to wife’s services and sexual relations.
● Financial support - wife only has a right to it if they are living separately
● Move away from coverture - power is shifting to the individual instead of the unity of the
individuals and focuses more on “family issues” s
● Now we allow
● Spousal contracts
● Support
● Necessaries - jointly and severally liable for financial obligations
● Tort immunities - limited, sometimes allowed and sometimes disallowed.
● TESTIFY AGAINST SPOUSE: Marital Privileges
● Spousal Confidentiality - private communications protected; may be asserted by the
person who made the statement (party or witness)
● Marital privilege - gives the witness spouse the option not to testify adversely against the
spouse-defendant. (witness-spouse privilege)

● Domestic Violence & Intimate partner violence

● Protection Orders, Criminal Law, & Advocating for Clients in Alabama
● 1871-Alabamawas the first state to disavow a husband’s privilege to beat a wife
with a stick, pull her hair, choke her, spit in her face, or kick her on the floor or
any other such indignities.
● Protection from Abuse Order (PFA) – NOT CRIMINAL
○ Protects…DOES NOT PUNISH
○ Limits activities that is per se legal but prohibit this activity to protect a
victim from abuse that stems from said activity
■ How to get
● By Counsel or Pro se
● Forms are available on Clerk’s Office website
● No filing fee
● Must allege
○ Underlying details including relationship,
children, existing criminal charges, existing
restraining orders, jurisdiction/venue facts
○ Facts of abuse that has occurred
● Can file where Any party lives, the abuse occurred,
the victim fled to escape abuse
● Ex Parte relief may be requested
○ Must be granted or denied w/in 3 days of
filing petition
 ○ Orders are to be sent to victims within 24
hours of issue
● Service will be issued to the defendant
○ Law enforcement
○ Private process service- Under RULE 4
● Ex Parte Order in effect until a final hearing is held
■ PFA Hearing
● Held
○ within 10 days of service
■ OR
○ At defendant request
● Vary among courts
● Defendant does not have to appear but MUST be
given notice and opportunity to be heard for the final
order to enter
● Victim presents evidence to substantiate sworn
testimony in the petition
○ Testimony, conviction records, documents,
electronic communications, photos, videos,
witness testimony
● Defendants present evidence rebuttal
● Judge determines if a PFA is warranted, and if so,
what requested relief will be awarded
● Order should be forwarded to parties and law
enforcement within 24 hours of issuance
○ PFAs are held in a central registry
■ Other Information
● Standardized form or can generate their own pleading
○ Enforceable anywhere in AL
○ PFAs from other states enforceable in AL
● Victim may withhold identifying information and
provide alternate contact details
○ Address, phone
● No mutual orders
○ Cross petitions may be filed and
consolidated into a case
○ A judge may deny one and grant another or
deny both or grant both
○ Could gran both, but should issue separate
orders making sure they don’t conflict and
give law enforcement clear guidance on
prohibited behavior.
■ Enforcement
● 13A-6-142
○ Violating PFA is Class A misdemeanor
● 13A-6-143
○ May arrest any person for violation with
probable cause to believe violated valid
temporary or perm PFA
 ○ The presentation of the PFA is probable
cause for the officer to believe it exists
(written or electronic)
○ Presentation of certified copy of PFA is not
required for warrantless arrest
● IF NOT served
○ Officer can inform a defendant of order
○ Allow reasonable time to comply
○ Document this fact in the written report
-Domestic Violence in Alabama(prosecuted in Municipal Courts, but if Felony:
District Court)
○ DV I
■ Class A Felony
■ Minimum one year if 2nd offense
■ Doubled if in the presence of a child younger than 14 or
Protection from Abuse Order (PFA)
○ DV II
■ Class B Felony
■ Minimum of 6 months if 2nd offense
■ Doubled if in the presence of a child younger than 14 or
violates PFA
○ D VIII
■ Has to have a special relationship with the victim
● Minimum 30 days f in violation of a PFA
● 2nd conviction has a minimum of 10 days
● 3rd conviction is C Felony
○ DV Suffocation/Strangulation
■ Class B Felony
○ DV Violation of Protection Order
■ Class A Misdemeanor
■ 2nd violation min. 30 days
■ 3rd violation Class C felony
■ $50 additional fine to DV Victims Trust Fund
● If an officer witnesses a crime, can execute warrantless arrest, but when it comes
to DV, can execute a warrantless arrest
○ §§ 15-10-3, 15-13-90
■ Probable Cause
■ (a)(8) Specifically states DV crimes to which warrantless
arrest may be applied
■ If arrested for a crime in conjunction with PFA, must appear
before a judge to receive bail within 48 hours of arrest. If no
PFA is within 24 hours
■ Delineates special conditions of release available in DV cases
● IPV= Violence between intimate partners
● DV= Violence within the family and against any family member including children
● Traditionally, there was no concept of domestic violence.
● Blackstone’s Commentaries
○ Husband held the right to physically chastise or reasonably correct his
wife because he was responsible for her actions
 ■ Only responsible if inflicted permanent injury to gratify own
bad passions
■ Law should not invade domestic forum into family privacy
● 1871-Alabamawas the first state to disavow a husband’s privilege to beat a wife
with a stick, pull her hair, choke her, spit in her face, or kick her on the floor or
any other such indignities.
● US Passed the Federal Violence Against Women’s Act in 1994
● One of every five homicide victims in the United States is killed by a current or
former male intimate partner
● Some states
● DV is a part of child custody and visitation
● Issue civil protection restraining orders
● Officers can arrest
● Perps can be prosecuted
● Criminalize domestic violence as Felony if committed in front of a child
● Mandatory reporting by health care professionals for injuries that appear to be
from domestic violence.
● Some states, perps must wear GPS monitoring devices
● Civil Protection Orders (CPO)
● Court order that bar a person who has committed acts of domestic violence from
having further harmful contact with the victim.
○ Petition the court for injunctive relief
■ Order perp to stop assaults, threats, harassment, physical abuse
■ Stay away from common places such as home, work, or
school
○ Many written in gender-neutral language
● Procedures
○ Vary from state to state
○ Some states have statutes
■ Satisfy statutory standards
■ Show the existence of violence sufficient to issue the order
● OR
■ Fear of imminent physical harm
○ Some states judges are available 24 hours a day 7 days a week to issue
CPOs

● Issue Restraining order

■ Cavanaugh v Cavanaugh
● Harassed wife by phone during, before, and after
divorce
● Harassed within definition of statute and admitted
● Constitution and Enforcement
■ Castle Rock v. Gonzales – Constitutional RIGHT in protection
from the acts of private party. Deshaney
● If there is constitutionally protected interest in having
police enforce a restraining order when there is
probable cause to do so
 ● Sue Police- Violate the 14th amendment by not
responding to her repeated reports of hubby violating
the restraining order
● Are CPOs effective?
○ Make those seeking CPOs feel safer
○ Prohibit contact
○ evict abuser
○ SOME ABUSERS VIOLATE THEM
Family Torts
● Bozman v Bozman (Interspousal Tort immunity)
○ State struggles with fully abrogating interspousal torts
■ In one case, husband threatened his wife with shotgun on road,
he and two accomplices forced her to pull over….she pulled
over and was raped by husband
■ 2nd case: Wife sues now husband for injuries from auto
accident (happened a year before the marriage)
○ Reasons to keep outlined on page 531
■ There are cases that fall between the two extremes
○ Ultimately court decides to abrogate
● Parent Child Tort Immunity
○ Bar unemancipated child from suing parents for personal injuries
■ Preserve parental control
■ Prevent fraudulent claims
■ Preserve family harmony
■ Protect family assets
● Intra-Family Torts
○ Negligence claims or IIED
■ Case- Richardson v. Richardson
● Forced to work as prostitute- court dismissed. S.C. of
S.D. reverses
● Pickering – Wife fooled husband into thinking a baby
was his. He found out, divorced her, and sued her and
her lover for IIED- COURT SAID- Against public
policy because it’s predicated on activity that leads to
divorce.
● This case is DIFFERENT and Pickering did not fully
explain its rationale
○ Says had alternative form of action
○ Should not subject innocent 3 year old to
“Interfamilial Warfare”
○ IIED ruling in Pickering makes it
unavailable if marriage does not dissolve
○ Diminishes justice because other actions
may have inadequate remedy
○ Only reasoning it to prevent flood of IIED
claims with or after every divorce
○ But in Richardson- no other remedy
■ Escaping abuser
 ■ Courts can sanction attorneys for
meritless claims
■ If unable to bring, another remedy
of divorce will not allow her to
seek remedies for battery with the
possibility of punitive damages.
● Tort against third parties

● Marital Rape
● Consent to marriage = irrevocable consent to sex OR wife is property
● Even if a man used force, he was legally incapable of raping his wife
● Medical Authority
● Next of kin has the POA
● In most jurisdictions, the spouse gets to decide if there is no advance directive in place
b. Parents & Children
● Why FMLA
■ Important that fathers and mothers can care for children
■ Lack of employment make parents choose between job security and parenting
■ 12 weeks unpaid leave for employees with 50 employees, with 12 month tenure, and
1250 hours/week
● Parents of a minor with a child must support the grandchild to the extent the minor cannot.
● 11.8 million children live in poverty as of 2017
● Parents have a liberty interest in directing the upbringing and education of their children.
● Children are responsible for their torts, but parents can be held statutorily or vicariously liable.
● Parents are likely not able to recover if their child is a victim in a tort, but they will be the
“guardian over the settlement” to use the funds to the benefit of the child.
● When the state interest in protecting the child outweighs the parents interest the State steps in
● Termination of parental rights
● Minors: hold some reproductive rights that outweigh the parent’s interest like raising their own
children (birth control, abortion)
● Immigration implications Sessions v. Morales-Santana (2017)
■ Challenge to immigration status determination when US citizen father is not married to
mother at the time of the child’s birth
● Gender bias based on parentage
● Unwed US Citizen mother can transmit citizenship
● Father not in US Code
● Violates Equal Protection of Fifth Amendment (Due Process Clause of Fifth
Amendment implies equal protection)
● Troxel v. Granville - parents right to determine who has access to their child.
● Minor even when they are 15 are under the parental control.
● Stepparents
● Generally, cannot act as a parent but can in some situations act in loco parentis
● Financial obligations may exist, but most jurisdictions say it dissolves upon divorce.
● Some states allow stepparent visitation and support
c. Grandparents
● Grandparent’s rights are subordinate to the parents
● In some extreme circumstances if the grandparent has stepped in to raise a child in a parental
capacity then the grandparent MAY be given visitation rights.
 d. Emancipation
● Emancipation of a minor is governed by statute
● Look at the totality of circumstances and if the child can fend for themselves.
● Age of majority: 18 in most states
● Marriage, military enlistment, establishing independence - all give rise to emancipation.
● Children in Need of Supervision (CHINS)
● Runaways, truancy,
● Should parents be allowed to terminate their responsibilities for a disobedient child.
e. Parental Divorce
● Want to terminate parental rights, but are not declared emancipated.
f. Parental Support
● Government programs, but tax benefits for family members who take on the responsibility.

ESTABLISHING PARENTHOOD

Nonmarital children and Protections for non-marital fathers

 Protections for Non-Marital Fathers

 Before Stanley v. Illinois: unwed biological fathers had few legally enforceable rights with respect to
nonmarital children
■ Partner passed away and three children were taken by state and placed in foster care
■ Stanley brought an Equal Protection Claim to the presumption that unmarried fathers were
unfit;
■ Fundamental due process right to privacy in ordering family (raise and conceive parent),
duty to parent the child, direct upbringing, and deciding who has visitation with the child.
● Strict scrutiny
■ Equal protection
● Treated differently than unwed mothers
● Treated differently than married parents
◆ Suspect classes that trigger strict scrutiny: race, religion, national origin,
and alienage. However, this is not an exhaustive list.
◆ Gender is a suspect classification
➢ Intermediate scrutiny
➢ further an important government interest (lower burden than
compelling state interest required by strict scrutiny test) and must
do so by means that are substantially related to that interest
■ The court said that the father’s rights outweigh the
state's interest in protecting the children because there is
a fundamental and essential right for parents to raise
their own children as they see fit.
 Putative father is someone who might be the dad; the father must get the information together; it’s
intended to be helpful in paternity litigation.

■ Part of the adoption code of Alabama since 1997.

■ An UNWED father who believes that he may have fathered a child, MUST FILE with the
putative father registry at DHR, either
● While the mother is pregnant; OR
 ● WITHIN 30 days of birth.
■ This ensures the father is notified of the potential adoption of the child (supposed to anyway)
so that he can contest the adoption and try to keep his parental rights. Once registered, you
sit back and wait to get notice of the potential adoption and until you are given an
opportunity to be heard.
■ If father fails to do this, like most of them do because they are unaware of this law, he has
given his IRREVOCABLE CONSENT to the adoption of the child. After 30 days, the
guillotine falls and there is NOTHING he can do to try to get his parental rights.
○ Putative father’s registry
● MUST AVAIL YOURSELF OF PUTATIVE FATHER
REGISTRY! Must know and register.
● Form is on line in Alabama
 Registration by form w/ state agency. Law assumes fathers
know to fill the form out
 Can be filed while mom is still pregnant
 To preserve parental rights beyond SW. In AL, if the
registration isn’t made w/n 30 days of birth, the father will not
have standing to oppose adoption
○ Mother may also add father to name at birth on the birth certificate

 Presumptive father: assumed to be the father under the legal rules

● State laws provide various circumstances that give rise to the presumption of
fatherhood. A presumed father has all the rights and responsibilities of
fatherhood unless challenged by a paternity suit.
● Some factors include: Intended parent on surrogacy contract, Married to father
at time of birth (includes same sex), paternity affidavits, listed on birth
certificate, married to mother at time of birth (includes same sex), raised/held
out child as own, financial support, DNA testing
○ Michael H. v. Gerald D.: when challenging the presumption of
legitimacy of a child born into a married family, the husband is the
presumptive father, not the nonmarital father.
 What are children entitled to?
■ Legitimate children are entitled to:
● support/inheritance
● Receiving public benefits
● Wrongful death; can sue for wrongful
death
■ Illegitimate children
● Child’s POV
○ Had no rights
● Parent’s POV
○ Illegitimate dad had no rights
to child
● Paternity determination
○ Responsibilities
○ Rights and benefits
 Presumptive father versus the Putative Father: Lehr v. Robinson: addresses the issue of putative
father v. presumptive father.
 ■ The mere existence of a biological link doesn’t invoke equal protection
safeguards. When one father has established a relationship with the child over the biological
father, who is in name only, EP can’t apply.
● Court reasoned parental rights do not spring full-blown from the biological
connection between parent and child. They require more enduring relationships.
Caban v. Mohammed

Disestablishing parenthood

a. Children conceived through Sexual Assault

a.Some states require a criminal conviction before terminating parental rights
b.Some states allow without conviction
i. Need clear and convincing evidence
c. Some states allow the mother to place the child for adoption with the father’s consent
b. Tricked Paternity
a. Child support legislation reflects the advancement in scientific technology and requires testing of
all parties. See 42 U.S.C. 666(a) (2022).
i. Can make a prima facie case in most jurisdictions for misrepresentation to get the benefit
of genetic testing if has already signed an affidavit stating they are the father
1. Tricked Father
a. When the father alleges that the mother misrepresented her use of birth
control and he had no intention of becoming a father
2. Paternity Fraud
a. Man believes he is the genetic father and later turns out to be untrue

Illegitimate Kids
○ Illegitimate children are not as stigmatized now but once carried a heavy stigma.
○ Legitimacy was traditionally defined in terms of the child’s birth not conception, unless there was a divorce
prior to birth
 There were gradual attempts to protect the legal rights of non-marital children
■ Levy and Lalli- Case
■ → Levy: dealt with illegitimate children trying to sue to receive mother’s benefits; Under
an EP claim that illegitimate children should receive the benefits that legitimate children are entitled to
■ → Lalli: SCOTUS upheld a A state law that conditions the inheritance rights of
illegitimate children upon a judicial determination of paternity does not violate the Equal Protection Clause
of the Fourteenth Amendment.
○ Classification based upon the marital status
of one’s parents does not amount to a
suspect classification demanding the strict
scrutiny standard of judicial review.
Nonetheless, any such classification must be
substantially related to a legitimate state
interest in order to avoid conflict with
 Fourteenth Amendment equal protection
concerns. We [recognize] that the state’s
interest in efficiently managing probate
property dispositions and minimizing
wrongful estate claims might sustain the
imposition of more stringent requirements
upon illegitimate heirs.
○ The law doesn’t make provisions for there to be more than 2 parents; leading up to Obergefell, which
changed the specific gender issues, there was an issue with same-sex because of biology
 With Conflicting presumptions of paternity, the court must decide the claim
■ the stronger claim-primary presumption is for the judge to look at the best interest of the
child;

Assisted Reproduction

a. Artificial Insemination (IVF)

a. Factors influence
1. Ideology
2. Cost
b. Who accesses
1. Mostly white women between ages 35-44
c. Parents
1. Intended Parents
a. Intention is for these two to be the parent
2. Sperm Donor & Spouse
3. Egg Donor & Spouse
4. Gestational Surrogate &Spouse
d. Surrogacy Contracts
● Physician involvement is required to help remove the emotional aspect of the transaction.
● Also allows states to hold fathers accountable for making babies as well as
protecting donors. (SEE UPA BELOW)
● E.E. v. OMGR - the court said a physician was required in order to
protect the “donor” from future financial obligations. This case
involved a turkey baster that was used as a substitution for the doctor.
● Donors have to rebut presumptions of fatherhood when the mother is married.
● Intended fathers - have the law on their side since the presumption is
the spouse is the parent
● Donors - could be out of luck or could be responsible depending on the
situation.
● Surrogacy Contract: - this is an actual embryo that a person is carrying
● Carrying the child for intended parents.
● Gestational Surrogacy Agreement (in general)
● Not upheld in most states
○ Because renting person or paying for a baby
● Can be terminated at any time before GM is pregnant.
● Governs the conditions of a gestational mother (surrogate) carrying the intended
parent’s child.
 ● There are limits that can be placed by the intended parent on the
surrogate. Can’t limit the right of the GM to make decisions regarding
her health or the childs.
● There are also limits on the intended parents as well (paying large
amounts not associated with cost of the baby - don’t like the idea of
buying a baby)
■ MUST BE AN ACT OF GENEROSITY! NOT PAYING FOR
A BABY OR RENTING A PERSON. Johnson v. Calvert
● Gestational mom agrees to relinquish rights and duties. GM’s husband must also
consent. If the GM marries after implantation then NO consent is required.
● Intended parents must adopt child
○ Some states have expedited the adoption process, while others simply
use the surrogacy agreement and list the intended parents on the birth
certificate.
■ Intended parents have to file within 300 days of the birth to
have the court issue an order establishing their parentage.
● Presumption that if GM has a child within the 300
days of assisted conception pursuant to an agreement
the child is presumed to be a result of that assisted
conception.
● States that follow UPA: Uniform Parentage Act
● Varies across states so people end up moving to other states in order to be able to
have the type of agreement they want. Some states don’t allow surrogacy
agreements.
● UPA requires court review and approval of agreements before they begin the
surrogacy program in some states. Consider home studies, voluntariness, and
costs.
●
b. UPA
● In Alabama and other states, physician involvement is required to terminate a donor's parental
rights.
● If the mother’s husband consents in writing then he is deemed the legal father and the
donor is off the hook and out of the picture.
● Doctor files the consent with the ADPH and records are sealed and the mother and father
are listed on the birth certificate.
● UPA requires the court to inquire as to the donor's intentions in determining any rights they may
have.
c. Posthumous Conception
● Comes up more often in a social setting; women are choosing to have eggs preserved to ensure
quality, and men are doing the same.
● What if one dies? What rights do the spouse or contributor to the embryo have to use if after death
of one of the contributors?
● Rules are not clear!
● The court will look at the totality of the circumstances when trying to decide.
But that leads to the issue of what entitlements a child is then entitled to have
access to as being the offspring of one of the contributors.
d. Assisted Reproductive Technology (IUI, donated material)
● Child's right to medical history v. donors' rights to privacy
● IUI - intrauterine implantation
 ● Donation of (sperm, egg, embryo)
● Traditionally, the person giving birth is the mother, and her husband is the father. The
potential for conflict is high.
e. Visitation
● Some states allow donor visitation rights with both the donor and mother’s written consent. (not in
Alabama!)
● In other states, can be granted visitation in loco parentis if:
● Claimants can show they assumed a parental relationship AND carried out the
duties and responsibilities of a parent to the child.
● In Alabama, typically, visitation rights are only granted to the non-custodial parent (i.e.
LEGAL mother/father).

Defacto Parenthood

 Equitable parenting claim to parenthood rooted in common law. Parenthood based on the role a
third party has played in a child’s life.
 Other common names:
o Parent by Estoppel
o Functional Parent
 Some jurisdictions recognize de facto parents as a child’s third legal parent
o May impose heightened standards of proof to protect the interests of the established
parents
 Such as
 Meet statutory elements with Clear and convincing evidence
 Some only recognize a maximum of two parents
 Factors
o Natural and legal parent consented to and fostered the parent like relationship
o Petitioner and child lived together in the same household
o Petitioner assumed obligations of parenthood without expectation of financial
compensation
o Petitioner has been in the parental role for length of time sufficient to have established
with the child a bonded, dependent relationship, parental in nature.

Parental Consent to Adoption

1. Adoption was unknown at common law. There was no such thing as adoption in England. “Only
God can create an heir and the government cannot interfere and make one family part of another
for purposes of heirship.”
2. Adoptive parents gain all rights under the constitution as natural parents after adoption is finalized
3. Adoptions can be arranged

i. Private: Pre-arranged between the parties with counsel

ii. Public adoption: With governmental agency
iii.NonProfit who has parental rights
iv. In Alabama
1. Child of the age of 14 or older must consent to adoption
v. Can be international or international
4. Adoptions in Alabama are handled by the Juvenile Courts.
i. Termination is handled in Juvenile Courts and then case goes to the probate court.
 ii. Filing focuses on domicile-where the parents live when it comes to if the AL courts have
jurisdictions over adoption; if parents are unmarried, the court looks to the mother’s
domicile

5. Who may adopt

a. Must be within the state enumeration of persons allowed to adopt a child
b. Must be in the best interest of child
6. State have requirements such as:
a. In Alabama, child over 14 must consent to adoption
b. Minimum age
c. Residency
d. Criminal background checks for
i. Child abuse/neglect
e. Preference goes to relatives in both states and federal law
i. Process is fast-tracked
ii. No protected right, but agencies frequently attempt to place children with relatives
1. Most states allow adult adoption, which is subject to particular restrictions
a. Alabama
i. Total permanent disability; or intellectual disability; or written
consent + already related by blood or marriage; or consent in
writing + adoptive parents are married man & woman.

7. Consent
a. There must be consent with adoptions. In all cases, biological parents' parental rights must be
terminated before adoption begins completed by judicial determination
1. Parent must consent
a. In almost all states must be in writing
b. May need to be under oath
c. May require witnesses
d. Alabama requires a notary
e. In Alabama, although a minor does not have capacity to contract, minor
parents can consent to adoption.
2. Voluntary Consent adoption is the perfect adoption because both parents
voluntarily sign over the rights for the child to be adopted.
a. Father unknown (REMEMBER PUTATIVE ANALYSIS FROM
ABOVE): The law wants the mother to put ANY and ALL names of
men who she BELIEVES MIGHT be the father of the child. However,
a lot of times you will find that this person is either unknown or the
mother doesn’t want to put anything. The law DOES NOT want this
father unknown business. Many women perjure themselves in saying
that they don’t know.
b. It is not a guarantee that the father would be given custody of the child,
but it gives them an opportunity to be heard and to oppose the adoption.
However, he doesn’t get this legal right if his name is listed as
unknown.
c. MUST REGISTER AS PUTATIVE FATHER!!!!
i. Rights of the father with adoptions
1. Heidbreder: Consent of the father wasn’t required
when he registered as a putative father outside the
 statutory window provided in the text and can’t retain
interest in a child in a pending adoption.
3. Involuntary termination of parental rights by state agency (ALABAMA is DHR)
a. State has deemed parent unfit- Alabama has grounds for termination in
Ala Code 12-15-319
i. Neglect/Abandonment
ii. Abuse
iii. Incapacity
iv. Conviction of and imprisonment for felony
v. Murder/Manslaughter of another child of the parent (or aiding
or abetting the murder)
vi. Parental rights to a sibling have been terminated
vii. Parent convicted of rape
viii. Failure to provide support
ix. Failure to maintain contact or communication with child
b. Involuntary termination by state
i. Rules (TWO PRONGS)
1. Clear and convincing evidence for statutory
termination from Ala. Code 12-15-319 (above)
a. In Alabama, we can now weigh if the child
has sufficient ties and connections to the
foster parent to terminate parental rights.
2. Preponderance of the evidence that severance is in
the children’s best issue
a. Child will benefit from severance
b. Child will be harmed if severance is denied

c. Judicial evaluation: Best Interest of the child standard (SEE 58-60 for
detailed analysis).
i. Balancing factors such as the emotional ties and relationships
between the child and household members/caregivers
ii. Capacity of parents to provide a safe home and adequate food
iii. Mental and physical health needs of the child
iv. Mental and physical health of parents
v. Presence of domestic violence in the home
ii. In ALABAMA
1. Cannot terminate parental rights and avoid child support
2. Can terminate rights, give up custody, and still owe child support
3. Alabama Code 26-18A-7 on consent and 26-10A-13 on timing of withdrawal
a. 5 day grace period
i. In Alabama, if mom changes her mind, she has a 5 day grace
period from the date she signed the relinquishment papers to
withdraw her consent to the adoption. If you get this process
wrong, the courts tend to go against the parent who has placed
this child up for adoption so watch out! Court presumes it is in
the best interest of the mother to be reunited with the child.
1. Requirements:
a. Notify the court of jurisdiction,
i. If unknown, notify
ii. Adoption agency (DHR), OR
 iii. Adoptive parents
b. In writing,
i. Certified mail (best if file in person
in the court of jurisdiction)
c. Within 5 days of signing
b. 6-14 day hearing period
i. After the 5 day grace period, mother is entitled to a hearing on
her attempted withdraw and this GOES TO THE BEST
INTERESTS OF THE CHILD and her character is not quite
relevant (wasn’t during grace period). Have to prove that the
biological mother raising the child is in their best interest over
the adoptive parents. This is often a huge hurdle since most
adoptive parents have to pass through the adoption process
before they are eligible to adopt.
c. After 14 days
i. Must prove FRAUD, DURESS, or MISREPRESENTATION
on the part of the adoptive parents or the agency. This must
come from the other side of the table. This is a QUESTION
OF FACT that must be proven.
ii. Only have ONE YEAR to plead this. Exception if the child
was kidnapped (hasn’t happened yet).

iii. Petition of Steve B.D.(EXAMPLE FOR REVOCATION)

1. A natural parent should be able to revoke consent to
adoption unless estopped
2. Estppped from revocation in this case, but Court also
articulated a new standard
a. In the absence of fraud, duress, or undue
influence, consents to adoption become final
and irrevocable upon execution of the
consent to adoption by natural parents and
delivery and surrender of the child to the
adoptive parents.
b. Reunification must be Must be in best
interest of child and revocation must be in
with 14 days of birth or consent
d. Days 15-365: can’t be revoked absent proof of fraud or duress
perpetrated by agency
e. Days 365 days: child will only be returned if proof of kidnapping and
subsequent adoption
Consequences of Adoption
● Terminates rights of natural parents
● Creates new rights in adoptive parents
● Some statutes define consequences
● Adoptive children inherit from the adoptive parents not the natural parents; doesn’t
include class gifts
● Check state statutes
■ Some states require it to say ”heirs” and not “issue.”
● Proceeding records are sealed to protect the child’s interests.
INTERFAMILY ADOPTIONS: In the Matter of J.J.J.: for a noncustodial parent to block a stepparent adoption,
there must have been meaningful contact retained w/ the child coupled w/ regular child support payments
→ Court must look at the entire history of the parent to determine if the
right to block a stepparent adoption was waived.

→ Foster Care Adoptions

● Often fast-tracked once the child is adoptable

● Natural parents’ rights must be terminated first
● Difficult children to place; adoptive parents often receive state and federal subsidies

Sex Orientation and adoption

● Emerging field, in light of Obergefell
● Typically, a matter of state law, consists with the state’s policy on same-sex marriage
● Full Faith and Credit for adoptions (V.L. v. E.L., 136 S.Ct. 1017 (2016).
● Even if not permitted in the state where the family lives, if valid in the state where it
happened, all states have to give legal effect to that adoption.

→ Race and Adoption

●
Federal law prohibits delaying or denying an adoption based on race, color, or national
origin among the parties
● Multiethnic Placement Act
● A person or government that is involved in adoption or foster
care placements may not
● Deny to any individual the opportunity to become an
adoptive or a foster parent, based on the race, color,
or national origin of the individual or of the child
involved or
● delay/deny the placement of a child for adoption or
into foster care, based on the race, color, or national
origin of the adoptive or foster parent or the child
involved
● Palmore: Court held a civil rights violation a white child was removed from the
mom and black stepfather on the basis that living in a biracial household would
make the child a target for bias
○ BASED ON RATIONALE THAT SHE MAY BE BULLIED FOR OR
TARGETED FOR LIVING IN BI_RACIAL HOUSEHOLD
○ HOLDING: Civil rights violation
→ ICWA-Indian Child Welfare Act

 The Indian Child Welfare Act

o US Bureau of Indian Affairs historically facilitated removal of large numbers of Indian children
from their homes for placement with non-Indian parents.
o ICWA of 1978, 25 USC § 1901
 CONGRESS found an alarmingly high percent of Indian family being broken up for
unwarranted reasons and children placed in nontribal public and private agencies
 Preserves cultural identity
  Limits removal of Native American children from their tribes
 Protect the best interest of Indian Children
 Promote stability and security of Indian tribes and families by the establishment
of minimum Federal standards for removal and placement in homes unique to
indican culture
 Provide assistance to Indian tribes in operation of child and family programs

o Child living on reservation: the tribal court has exclusive jurisdiction

o Child domiciled off the reservation: jurisdiction can be transferred to tribal courts unless tribe
declines or court finds good cause to retain jurisdiction
o ICWA places children with relatives or tribe, even when jurisdiction remains in state court
 Orders in violation of ICWA can be overturned at any time
 Courts are split over idea of existing indian family rule
 ICWA doesn’t apply to divorce cases; only really dependency issues.
 Equal protection: Special treatment can be tied rationally to the fulfillment of Congress
unique obligation toward the Indians
 Does not apply in divorce cases

 Indian child
 Any unmarried person under 18
o A member of an Indian tribe
 OR
o Eligible for membership and the biological child of tribe member
 Preference to
 child’s extended family
 other member of tribe
 other Indian family
 Factors:
 Must show remedial efforts before involuntary termination
 Serious harm emotional or physical harm will result from the parent's continued
custody
o Evidence standard: Reasonable doubt
 Including testimony of qualified expert witness
 Applies in ALL proceedings
 Termination
 Preadoptive
 adoptiopn

o Courts are split over idea of Existing Indian Family Rule

 Baby Girl case (BELOW)
o Adoptive Couple v. Baby Girl
 Impregnated mother while in military
 Wanted marriage
 Mother did not
 Mother asked if he would relinquish parental rights
 Thought was relinquishing parental rights to the MOTHER
 Found out it was to be for child’s adoption
 Brought case to stop adoption under ICWA
 Court need not establish if Brown was a parent under ICWA, even if he was
  Had not established parental rights under S.C. State law
 Never had custody
 Abandoned before birth
 ICWA was established for UNWARRANTED removal of Indian children from
Indian families due to cultural insensitivities and bias
 Narrowed ACT to “existing Indian family”

Child Abuse

c. What happens after child abuse or neglect has occurred

● The Adoption Assistance and Child Welfare Act - the State has to make reasonable efforts to
reunite the family
● The child welfare agency in each state has flexibility in order to define specific steps that
need to be taken in order to reunite the family
● A plan is developed by the court, often in conjunction with social services as to how to
address the issue.
● Goal: reunify the family
● If the plan fails TPR is requested by the social services agency, if
granted the child can be adopted (between 12-22 months)
● TPR takes time and the attorney needs to be clear to the parents that it
is a long process
● Once TPR is granted you can not modify the agreement but it
is appealable.
● Inadequate resources to accomplish a plan doesn’t give rise to private cause of action.
● Aggravated Circumstances - Plans Not required if removal is subject to aggravating
circumstances (harm to child, previous TPR of a sibling) 30 days
● The severity of the behavior of abuse can be higher or lower depending on the
situation. The neglect is high and they previously had TPR then there is no need
for a new plan.
● Indian Child Welfare Act - requires clear and convincing proof that reunification was attempted
and it failed and living with the parent would cause trauma before the child could be removed. The
tribe is also allowed to intervene before civil courts can act.
● We are compensating the Native Americans for historical hardships
● TPR is beyond a reasonable doubt the parent is unfit.
● Foster Care
● 24 hr substitute care for children outside their own home.
● Underfunded, leads to monitoring problems and services within the foster care system
● Preference to place child with an adult family member
● Many adopted children are adopted by foster parents
● Interstate Compact on the Placement of Children governs fostering children across state lines from
their homes.
● Abandonment
● Incarceration as abandonment - depends on the length and severity of the sentence. State statutes
will determine this.
● Safe Haven Laws - parents may voluntarily surrender an infant without fear of abandonment
prosecution IF the child shows no sign of abuse or neglect.

II. Divorce (ALWAYS TALK ABOUT DEFENSES WHEN YOU TALK ABOUT DIVORCE)!
a. ALABAMA REQUIRES THE DEFENDANT TO DISPUTE THE DIVORCE GROUNDS, EVEN
IN NO-FAULT DIVORCE!
b. Pretty high conflict litigation
i. Charge a retainer for some level of security of payment
c. Divorce doesn’t void a marriage; divorce dissolves it. Dissolving a marriage depends on conduct
occurring after the marriage, not something that happened when the marriage was entered into.
d. Divorce Based on Incompatibility
i. In 1970’s, no state would grant a divorce based on the couple’s inability to get along.
With a divorce based on incompatibility, the parties are simply alleging that they don’t
like one another enough to spend the rest of their lives together.
ii. ALWAYS ALLEGE IT IN COMPLAINT!!!
iii. Alabama– also have irretrievable breakdown of the marriage – this is the same thing and
is proven the same way.
1. Incompatibility has no defenses. You will never file a divorce in this state that
doesn’t allege incompatibility. If there are no defenses to incompatibility.
Divorce will always be granted since there are no defenses. Only testimony you
have to bring in is that you believe there is incompatibility. You cannot question
a witness about why they believe they are incompatible because this isn’t
permitted because the face they disagree on that shows they are incompatible
and the evidence cannot be brought
2. in ALABAMA has to dispute the divorce grounds even in no-fault uncontested
divorce.
3. IF a spouse does not show up….there is still a divorce
a. Only need one party to state it’s irretrievably broken
b. Party only needs notice
i. Not required to be heard in a civil action
4. If no appeal and does not show
a. Cannot appeal from final divorce action if appeal timeline has passed
iv. Some states do allow a defense to incompatibility and irretrievable break down.
1. Example: husband sued for divorce claiming incompatibility. Wife claims that
they are not incompatible or irretrievable and that he has a drinking problem and
if he would stop drinking they might be able to repair the marriage. The court
granted the divorce, but allowed evidence to be presented to prove they are not
incompatible.
a. In Alabama, cannot even bring this evidence in.
v. Typically, the evidence for incompatibility is not very in depth. However, it can be in you
need to say something the court needs to hear.
e. No-Fault Divorce: Proof
i. How do you prove: Separate and living apart
1. Legal requirements in some states
a. Same residence then when no sexual intercourse
b. Some states live separate and apart
2. Time Requirements
a. Some state require a period
i. Drafting complaint: Complaint has date, this is the date no
other marital events occurred
ii. Alabama
1. No waiting period
3. Intent to end marriage
4. State marriage is irretrievably broken
5. Some want to end No-fault Divorce as the downfall to modern civilization
a. Weakens fabric of society and marriage is should be harder to dissolve
f. Fault-Based Divorce (Social stigma persisted in this era)- Women are taken care of! Take
care of the HOME!
 i. Burden: Must be proven with CLEAR AND CONVINCING EVIDENCE. Must have
quality evidence to meet this burden. Must have corroborating evidence at the time the
divorce is filed.
ii. If you want more than half of the marital estate, custody of the children, want to allege a
fault-based instead of the catch-all incompatibility. You plead them both together, but
even if you don’t have enough evidence to prove fault-based grounds, it might be at least
enough to prove they are incompatible. Still relevant to discuss because might still be
able to get custody and more of the marital estate even if divorce is granted solely based
on incompatibility. However, don’t plead anything that you don’t think you have enough
evidence to prove. If you think you are walking the line, or if you can back it up under
incompatibility, then it may be plead. Must have a GOOD FAITH BASIS.
iii. If you take the no-fault/incompatibility pleadings away, you enter into a situation where
the court might not grant the divorce and let the parties out of the marriage.
iv. Big 3 that you see the most:
1. Adultery,
2. Cruelty, and
3. Addiction
v. Adultery
1. Suspicion and speculation will never meet the burden that must be proven with
clear and convincing evidence. Must have quality evidence. Evidence of
adultery that is collected after the filing of divorce is inadmissible to prove
adultery, except as corroboration of evidence that was collected prior to filing
divorce.
2. You want photos of him going into the hotel, his license plate, photos of him
going in and leaving which are CLEAR. Want multiple instances of
unexplainable behavior.
3. Private Investigator
a. If you have circumstantial evidence suggesting your client’s husband
might be committing adultery, you don’t file right away. Tell them that
we need to wait and collect more substantial evidence before filing.
This is when you have the client hire a private investigator and get him
to collect the substantial evidence of an affair. The client hires them so
that you aren’t on the hook for payment if the client defaults on
payment to the PI. Don’t get your client to collect the evidence. They
are not a trained PI. Insist that they don’t try to do this on their own and
document in personal notes that you have advised client strongly
against personal investigation efforts. They might end up committing
torts or other criminal actions while attempting to collect the evidence.
b. When you first start working in family law, find a good PI. Call other
family attorneys with good reputations and find out who they use. They
have to be a good person to get you good evidence and you need a
highly respectable witness because they might have to take the stand.
c. Alabama– the testimony of a PI is to be viewed as that of a prostitute.
However, they are hired, they are on a particular side so we don’t
particularly stress their testimony other than when they started
following the person, when they started videoing, when they stopped,
and what they found. Their documentation is really worth its weight in
gold. Videos are a must have.
4. Telephone conversations in Alabama– you can only record telephone
conversations in which are a party to yourself. It is a crime and can also be a
federal crime. It is an ethical violation in the state to receive evidence of this sort
from a client. If they did do something of this nature, advise them to plead the
5th. You cannot assert their 5th amendment privilege. Make sure they understand
all the questions they will be asked in association with the testimony. Plead the
5th to everything! However, you CAN have a VIDEO RECORDER in the home.
5. Possibility for TORT CLAIM in ADDITION TO DIVORCE FILING
 a. If after adultery your client finds out they have an STD, might be able
to add a tort claim to the divorce action. If you can PROVE that he
gave it to her, then you have a claim for:
i. Divorce based on incompatibility and adultery
ii. Tort action for battery and negligent infliction of emotional
distress.
6. Reasons: faith based concerns that may require the divorce on the grounds of
adultery.
vi. Cruelty
1. This is another situation where when we file the claim we also add a tory claim.
PLEAD:
a. Incompatibility and cruelty;
b. Battery/assault
c. In the case where wife jumped out the second floor window when her
husband beat her with a baseball bat, add
i. Intentional infliction of emotional distress
d. Possible PFA
2. Can only be used against the spouse, NOT against the children. However, can
get him under incompatibility if you plead that you are scared he will harm your
children.
3. Proven two ways:
a. 1. Prove that one spouse has perpetrated actual violence upon the other
spouse such as to do serious bodily harm. Must be PROVABLE.
i. Not every act that could be called violent is sufficient to
qualify as cruelty in the divorce arena. Must be actual bodily
injury.
b. 2. Through a pattern of conduct that would cause a reasonable person to
fear that they will receive serious bodily harm.
i. This is where you resort if you don’t have actual injury to
report. Use this when threats are being made. You have to be
able to prove these words have been said. Can use voice
recordings of these threats to prove it. Recordings are very
powerful evidence. This is a question of fact for the jury to
decide whether or not it is his voice on the recording.
4. Das v. Das Verbal and physical abuse may have been tolerated in another era;
however a greater awareness and intolerance of domestic violence has shifted
public policy allowing the dissolution of marriages with a violent element.
5. Protection from Abuse Order
a. Can be used as great evidence to prove cruelty. Can also be misused I
this way by bottom feeding attorneys. They only work if the defendant
is a law abiding citizen. If they are seriously dangerous, it might be the
last straw that sets them off!
b. Client might also want to apply for PFA when they file for a divorce.
c. There are no jurisdictional requirements for PFA’s. To get a divorce in
Alabama, must meet certain jurisdictional requirements and they are
very strict. There are no jurisdictional requirements for a PFA. This
means that a person living in another state can flee to Alabamabecause
they are fleeing from abuse and can immediately file for a PFA here.
You can file the same day they arrive whereas you couldn’t file for a
divorce until they have been in the state for a while and don’t meet
jurisdictional requirements.
d. Possible relief from PFA:
i. Equivalent of restraining order
1. Tell defendant clients that they may have NO contact
with their spouse WHATSOEVER! No phone calls
 and cannot go to their residence or place of
employment.
2. Actually gives more protection than restraining order
because it allows for other forms of relief as well.
ii. Child custody/support
1. Other spouse cannot go to any place the children are
known to go
2. No contract with the children
3. He has to pay child support even if he cannot see the
children
iii. No guns!
1. Might prohibit the other spouse form owning or
being in possession of a firearm while the order is in
effect. Can also be a federal offense if they are found
with it.
vii. Addiction
1. MOST COMMON of the Big 3
2. By statute, it is grounds for divorce, by proof that the other spouse BECAUSE
addicted to alcohol, or opium derivative drugs.
a. Alcoholism/addiction that developed AFTER the marriage.
b. Meth isn’t opium derivative drug. However, judge won’t draw a
distinction there. If doesn’t meet statute, can come in under
incompatibility anyway. Therefore, no matter what the addiction is to,
still plead through incompatibility.
3. Pre-trial:
a. Motion for drug testing
i. Both parties are typically ordered by the court to submit for
drug testing when one party files this motion. Therefore, have
a conversation with your client about whether or not he can
pass it.
b. File subpoena deuces tecum to get insurance information (produce
paperwork, records) for legal drugs to insurance company to determine
how often they paid out on there prescriptions or if they have at all.
When the case is strong, likely to settle.
4. How to prove it:
a. Do they go to bars? Show up to work drunk? Where do they purchase
alcohol? Receipts?? Video recordings (when wife claims husband beats
her but it is really her drunken rage shown through video recordings of
her trying to break in his room at night).
b. Ask about witnesses and who can prove the addiction issue. If
someone’s own family testifies against them this can help you win your
case. However, this is rare.
c. Can be proven even if there are bad facts.
d. Can be very difficult to prove addiction.
viii. Abandonment
1. Before incompatibility, used to be the most popular ground for a divorce. This
was because it was the lease offensive fault-based ground. Doesn’t require a
public record saying that one of them is an adulterer, addicted to something, or
cruel.
2. Common Law Elements:
a. Voluntary abandonment – prison doesn’t count
b. Proven by clear and convincing evidence by the innocent spouse
c. Abandonment must have lasted for 1 year before divorce can be
granted
d. No support being sent home during the year – disproves abandonment
3. Constructive Abandonment
 a. Without having incompatibility as an option, this occurs when a
person’s conduct is so egregious and degrading to the other in the
marriage that the offended spouse leaves. This would appear to be the
person who is abandoning the marriage, but they say they left due to
the things that were happening to them and that they were forced out.
ix. Imprisonment
1. Must involve a sentence of 7 years or more in the penitentiary and the
imprisoned spouse much have already been in prison for 2 years before this
ground becomes ripe.
2. Alabama– in this state you ask how many years the spouse got, how long they
have been in there. Most people don’t want to wait for this to be ripe when they
can get it by default immediately under incompatibility. In Alabama, they don’t’
shackle a prisoner and bring them to court to defend against divorce
proceedings. You get everything you want by default while they are in prison.
Therefore, this is no longer practical.
x. Insanity
1. Don’t see much of this. Insanity must be prove to be permanent. The person
must be in a mental institution and the superintendent of this institution must
testify that the person is permanently insane.
xi. Pregnancy Without Husbands Knowledge and Husband isn’t the Father
1. Same as annulment
2. Elements:
a. I didn’t know my wife was pregnant; AND
b. I am not the father
xii. Homosexuality
1. MUST HAVE PROOF! If client wants to allege their spouse is gay, they must
have proof. Even in 2014, this is a stigmatizing allegation. Awfully hard to
prove, but if client is insistent, then get the PI and get them to say what the
spouse things the PI might find. Might be able to prove the spouse goes to gay
bars.
2. Don’t allege unless you think you can prove with clear and convincing evidence.
Often thrown around for the purpose of defaming the other spouse.
g. Defenses for Fault-Based Divorce
i. Connivance
1. Defense to adultery. Means that one spouse has connived the adultery of the
other spouse. They have arranged for it to happen, wanted it to happen, so that
spouse commits adultery. If it can be proven this is what actually happened, this
is a defense to adultery and no divorce can be granted based on adultery. Had its
vitality prior to incompatibility.
ii. Collusion
1. If the two spouses collude to make up a ground for divorce and file a false
claim, you cannot have a divorce. They are conspiring to perpetrate fraud upon
the court. They both know what they are doing. People were doing this with
regularity because there was no other speedy way out of the marriage, if there
was a way out at all, prior to incompatibility.
2. If at the end of the case the court finds that the parties have perpetrated fraud on
the court, the court will determine that the divorce is not granted due to
collusion. Doesn’t happen anymore due to incompatibility.
3. Prior to incompatibility, you saw this a lot with abandonment.
iii. Recrimination*
1. Still has some vitality. Keep your eyes out for this one.
2. This is something that happens when both parties prove a fault-based ground
against the other party. Practical value is that they are brining all of this out in
hopes to get a bigger share of the marital estate and influence child custody and
the divorce will only be granted on incompatibility and it might not have been
worth the extra pleadings at all.
 3. The two basically cancel each other out under recrimination and the divorce is
granted strictly on incompatibility. Prior to incompatibility, if both parties
proved their fault-based case, the court wouldn’t grant the divorce and would
declare them still married.
iv. Provocation
1. Provocation defense is available to a respondent who claims that their own
faulty conduct was reasonably provoked by the petitioner. Petitioner conduct
must be serious enough to make the respondent’s faulty reaction proportionate to
the provocation.
v. Condonation ***
1. Still see this!!! Occurs in the divorce world when one spouse becomes aware of
a marital fault on the part of the other and then forms the intent to resume the
marriage. The one who has been wronged has condoned the marital fault with
the intent to go on with the marriage. This is problematic. This particular
defense causes attorneys to be perceived as trying to force people into divorces
that they aren’t really ready for.
2. If one spouse wants to divorce and the other doesn’t, then the other party can
defend the fault-based claim with condemnation because the other spouse has
waited and tried to go through counseling or some other actions in an attempt to
maintain the marriage gives the defense of condemnation to the other spouses
fault-based claims.
3. After marital fault is made known, one party forms the intent to continue in the
marriage. The biggest concern is WHEN the marital fault occurred.
a. The trigger point is when they find out about the marital fault. This is
when you form the intent to remain in the marriage or form the intent to
get a divorce. The court doesn’t want to hear stale claims where the
other party has an old grievance.
4. If client wants to go through counseling and has a fault-based ground, get a
written contract on the attempt to go to counseling, or get separation, not a legal
separation, for them to live separate while they go to counseling. Might not need
a legal separation because if the other spouse doesn’t want divorce on fault-
based grounds, there is leverage to get them to agree to the other parties
separation grounds when it comes to kids, etc. Moving to another bedroom
doesn’t work. Only works if they live separate while they try to work on their
marriage. If they are still sexually involved, shows Condonation.
h. Divorce Jurisdiction – Alabamaas example
i. In Other Countries
1. UNLESS
a. Against public public policy
i. Child marriage
ii. Marriage without consent
iii. Related parties are married
ii. Other states
1. States are sovereign but
a. Concepts of comity mean a state should recognize divorce of another
state
b. States must give Full Faith and Credit to decrees of other states when
the parties have followed the laws of that other state
i. BUT only if the other state where proceedings occurred had
jurisdiction over the marriage
iii. Court must have personal jurisdiction over parties
1. If can approve spouse is avoiding service. Not unaware, but aware and avoiding
to delay
a. Serve by publication is available in Alabamato obtain personal
jurisdiction
i. 4.3(e)1- ALSO AlabamaMAIL RULE (1st class mail):
 1. Can solve by first class mail in Alabamain domestic
relations cases
a. Known address for past two years
b. Address of next of kin
c. Allege the facts for avoiding service
iv. Subject matter jurisdiction over marriage
1. Residency
a. Domicile
i. Physical presence
ii. Intent to remain
2. Statute requirements (may require both to be resident or just one)
3. Personal Jurisdiction
a. Significant contacts in the state
i. May not have personal jurisdiction
v. Bona Fide Residents
1. If both parties are bona fide residents of Alabama, there is no waiting period.
The divorce can be filed that day.
vi. One spouse isn’t BFR
1. If one spouse if a bona fide resident of another state, the bona fide resident must
have resided here for 6 months before Alabamawill take jurisdiction over the
marriage.
2. “Significant contacts”
a. If the other spouse lives in Georgia and has had “significant contacts”
with Alabama, then can be filed in Alabama, have other spouse served
in Georgia, and he will be subject to the jurisdiction of Alabamadue to
his significant contacts and will have to come here to defend the suit.
3. No “significant contacts”
a. If there are no significant contacts, Alabamacannot take jurisdiction
over the person. If client is BFR, but spouse is not, you can file for
divorce here, but unless he submits himself to jurisdiction of the courts,
you can only get a divorce. You will NOT be able to get alimony or a
property division unless there are significant contacts. They cannot be
ordered to pay or give up anything unless these significant contacts
exist.
b. Best advice – tell plaintiff to file in state where defendant is BFR so
they have jurisdiction over him. This ensures that the other spouse
might be able to recover alimony, property, or anything else from the
person. Can get someone that moved here a PFA order, but not a
divorce.
c. If you are not licensed to practice in another state, cannot represent
your client unless you are admitted to practice Pro Hac to the other
state. Might not be a good idea for your client because you aren’t
familiar with the court system.
i. Divorce Venue (Which County?)
i. In Alabama, venue is always proper:
1. In the defendant’s county of residence at the time of the divorce.
a. Might not be as convenient for plaintiff, but it is always proper.
2. In the county where the two physically separated
ii. The plaintiff has the choice of venue. A mistake on venue can cost you your client. Make
sure you choose the best one.
iii. Venue can be waived. The two parties can decide that they don’t want it in any of these
places. Sometimes well off couples can choose a separate venue to try to keep things
quiet.
iv. Example: John and Mary are married in Elmore County
1. Move to Montgomery
2. Move to Autauga County – which is where they separated
 3. After separation
a. John in Baldwin – South end of state
b. Mary in Madison – North end of state
4. You are in Montgomery, you recommend that John file suit in Autauga County
which is convenient for you and is more convenient John than filing in Madison.
5. Your two options for venue are Autauga or Madison County.
j. Pendente Lite Hearing
i. This is Alabama terminology! File this with your divorce motion or might come directly
after. If you know you need it, file it WITH the divorce complaint.
ii. Pendente lite hearing - hearing pending litigation or a temporary hearing. This is an
emergency hearing. Once you file for this, be ready for trial! Whatever the court
determines will be the rules until the final hearing in which everything could be changed,
unless they settle before them (encouraged to settle). There is a lot of relief that can be
ordered. This is similar to trying the care prematurely. Gets the court to order things that
will keep order between the parties.
iii. Objection to pendente order – if you get back a bad order, file objections to the pendente
lite order. You only have 10 days to do so from the date the order was issued stating that
you want the court to reconsider because you feel it is clearly erroneous.
1. If objections are denied, file for a writ of mandamus and ask the court of civil
appeals to take a look at what was done, have them ask the judge to correct what
was an error.
2. You CANNOT appeal from a temporary order!
iv. Doesn’t look good for your client if they give up temporary child custody for more
money! If you call the other parties attorney and get them to give up custody for the
summer or until pending litigation for more money, it looks terrible on them! The judge
doesn’t want to upset the working system. Whoever has custody temporarily is likely to
keep it if they have a successful track record.
v. Possible relief that can be awarded:
1. Award possession of marital residence
a. Other spouse isn’t fee to come and go at will. Can only do so with
permission.
2. Spousal Support
3. Temporary Child Custody
4. Child Support
a. Never cut the kids off! May also get spousal support IF there is enough
to go around! Kids first!
5. Debts of Marriage
a. Who pays the mortgage, car payments, credit cards, etc?
6. Insurance

I. Property – Marital property (DIVISION OF PROPERTY)

a. Equitable Division State

Division of property (land, car, pension, business) HOW TO DO IT!!!

a. Identify (what is there, how did it come to be, where is it now)

b. Value (can become very complicated and subjective)
c. Apportion (Settlement or judicial decree)

ii. Most jurisdictions exclude

1. Inherited property
2. Property excluded in prenup
3. And property acquired prior to the marriage
 iii. Alabama and most states have equitable division. The split may not be 50/50 because that
might not be equitable for the court to do under the circumstances.
1. Classify all property at the time of D as separate or marital property
2. THEN: equitably divide marital assets (assets acquired during marriage) based
on the totality of the circumstances
iv. Fault divorce implications
1. Sometimes in serious circumstances, but not usually
v. Economic Misconduct
1. If can prove misconduct, the injured spouse may get a disproportionate amount
of assets
vi. Also includes debts and liabilities
1. Factors into each parties awards
a. Court order is only enforceable as to parties
i. 3rd party creditor is not bound by Court’s decision on liability
allocation
b. Community Property States (AZ, CA, ID, LA, NV, NM, TX,
i. We have a few of these. General rule – can assume that there will be a 50/50 split.
1. Presumption that all property after marriage, but before divorce decree counts
2. Property acquired during cohabitation states are split
3. Increases in value of sperate property may be included (called spousal efforts)
c. Marital Estate (Hotchpot or kitchen sink)
i. 11 states follow
1. Consider all property and assets belonging to either or both spouses however
and wherever acquired and regardless of title
2. Eliminates disputes over characterization of assets
ii. This is FIXED. There is nothing that will increase the size of the estate through insurance
or anything else. This is the circle or the pool that gets divided. Make sure that everything
that is owned by either party is initially put into the marital estate. Court can only divide
what is in the circle.
iii. Equitable division of property - The duty of the court, at the end of the day, is to
equitably divide what is in the equitable estate. Assume that EVERYTHING owned goes
into the pot! Jewelry, furniture, houses, cars, guns, money, land…
iv. What you get in a divorce will be dependent on the quality of your discovery. Typically
ask for their last 5 years of tax returns.
v. Stripped Assets
1. When one party tries to strip assets so another cannot get them.
2. Fraudulent Conveyance – it is a fraudulent conveyance to sell your corvette to
your best friend for $1 and buy it back after the divorce. Clients DO NOT need
to do this. If makes them look bad to the court. If there is a fraudulent
conveyance, file a motion to add indispensable parties and seek a constructive
trust. The court might not be able to bring the actual property back in, but they
might award that the equitable value be brought back into the circle so it can be
distributed.
a. If you have indispensable parties, they become a party to the divorce
and you can depose them, file interrogatories, and require them to
testify. They are also required to get a copy of every pleading thereafter.
Ask them if they have made payments, who made the payments, and
whether they own any interest in the property.
d. Separate Property
i. Is there an intent to make it a gift?
1. Look for intent to make a gift
ii. Presumption that property prior to or after marriage ends is separate property
iii. States are split on whether the marriage ends when separation occurs, or when divorce is
filed or when divorce is final
iv. Statutory exceptions to marital property (i.e. inherited property)
v. Characterization of Assets
 1. IN ALABAMA: MUST TAKE AFFIRMATIVE STEPS TO MAKE MARITAL
PROPERTY
2. Transmutation:
a. Voluntarily change property from separate property to marital property
i. Example
1. Change deed from just your name to you and your
spouse after marriage
b. Can happen involuntarily with a marital home
i. Fact based
3. If commingled,
a. Trace assets and if can trace with can retain original classification of
separate property
b. If untraceable then has loss identity and becomes marital assets
c. If comingled into new property resulting in loss of identity then marital
property
d. Some courts may characterize commingling as gifts to the marital
estate
vi. Trusts
1. May or may not be considered as marital property
a. Trust terms my dictate
vii. Choice of Law
1. Parties agreement (premarital or marital) can govern
2. Forum state will likely apply its law to all property, unless objection is raised
3. Parties would likely need to domesticate judgment in state where property is
located to enforce judgment
a. Need to register the judgment to collect child support in another state
viii. Personal injury:
a. Jurisdictions take one of two approaches to determine whether a spouse’s
personal-injury award is considered marital property and, therefore, subject
to equitable distribution in a divorce: (1) the mechanistic approach or (2) the
analytical-theory approach. In a jurisdiction that applies the mechanistic
approach, if a personal injury or workers’ compensation award is acquired
during the marriage, the entire award is considered marital property that is
subject to division.
b. However, note that if the jurisdiction had applied the analytical-theory
approach, the court would break the injury award into three separate parts:
(1) damages for pain and suffering, disability, and loss of ability to lead a
normal life (the separate property of the injured spouse), (2) damages for
loss of consortium (the separate property of the non-injured spouse), and (3)
damages for the injured spouse’s lost wages, lost earning potential, and
medical expenses (marital property subject to distribution). Accordingly, if
the jurisdiction had applied the analytical-theory approach, only the portion
of the injury award that fell within the third category would be considered
marital property and subject to equitable division: the compensation for lost
wages and lost earning potential
ix.
x. Cohabitation –again
1. Property rights of cohabiting couples are governed by traditional contract and
property law
a. Property ownership
b. Landlord/tenant law
c. Contracts between cohabitants
d. Separate property only
e. No concept of equitable division or marital assets
xi. Marital Home
1. Typically, the spouse with full custody gets home
 2. If acquired prior to marriage but marital funds expected for labor and upkeep,
may be characterized as marital home
xii. Appreciation in Separate property
1. Some courts require the spouse to have contributed to the increase
a. Means: Active appreciation
2. Some states do not allow passive appreciation to be marital property
a. Inherited and put in an account and just sat there without the force or
effort of either party
3. Other courts state either spouse can contribute to the increase and then become
marital property
4. Business valuation
a. Distinction between that of business and that of individual in some
states, other don’t distinguish
b. Typically requires expert testimony
xiii. Home Makers
1. Typically entitled to fair share of assets
a. Why
i. Contributed to the accumulation of those assets
ii. Not limited by gender
iii. Marriage is seen as an economic partnership
xiv. Bankruptcy
1. Automatic stay until BK is resolved
a. Can rule on domestic support obligations and other non financial issues
2. Property settlements
a. Not generally dischargeable
i. 11 USC 1010(14A). covers alimony and support and property
settlement
ii. Depends on type of bankruptcy
1. Liquidation
2. Reorganization
xv. There are some things that we can eliminate from the circle so that the court cannot
divide them. Usually only works in equitable division states. You claim property as
separate in the divorce pleading in one of your allegations that one spouse has separate
property that is not part of the marital estate. This signals the other party and the court
that there will probably be a dispute based on separate property. Usually in equitable
division states:
1. Property owned prior to the marriage;
2. Inherited property;
3. Gifts;
a. Even gifts between spouses count
4. Retirement accounts – Alabama added extra
xvi. This often strips the marital estate of some of the most valuable things and the court
cannot touch them. If family has a lot of property and money, might settle to try to keep
the property in the family. The court may take notice of the amount of separate property
that a party has. Still need to bring it to the court’s attention, but still put a value on it.
xvii. Non-modifiable – once the court has divided the property among the parties, it is non-
modifiable. If you want to change it, file a RULE 59 motion to alter, amend, or vacate a
judgment. This MUST be filed within 30 days of the rendition of the order. Gives you a
second bite at the apple.
1. Also used if property has been ignored. Allege that the court has failed to rule on
a particular piece of property. If you don’t catch it and it blows by, then the
parties will own the property in whatever name it was owned in during the
marriage. If it was in their joint names, they still own it as tenants in common
which isn’t what you want at the end of a divorce.
xviii. Stock Options
 1. Vest during the marriage, as well as unvested options, are likely marital property,
but some jurisdictions hold that options can be allocated until they vest.
a. Likely to come back to court when values are ascertainable if have not
matured
2. Time rule:
a. Look at length of time asset has existed
b. What % of that time was during the marriage
3. Other compensation that may be considered marital property
a. Financial benefits of employment
b. Commissions
c. Awards
i. Judgments depending on purpose of award
xix. Retirement Accounts (can get in a majority of jurisdictions (vested & non vested)
1. Alabama also includes this as a type of separate property. Alabama was the last
of 50 states that would allow a spouse to be awarded a portion of the spouses
retirement account.
a. Vaugh v. Vaugh – Alabama Supreme Court case
i. Court determined that this was sex discrimination. The impact
was primarily on women even though it was not
discriminatory on its face.
ii. 50% maximum – will allow a spouse to seek UP TO, BUT NO
MORE THAN 50% of the other spouses retirement account.
There is no such thing as telling a client they are entitled to
50% of the other spouse's retirement account. You tell them
that you can REQUEST that they be entitled to 50%, but
might also get less.
iii. 10 year rule – the parties must have been married for a
minimum of 10 years, during which the account was
accumulated. If they have not been married 10 years, there is
no point in asking for any kind of requirement division and it
would be a palpable error for the court to award it.
iv. Can only get 50% from the DATE OF FILING. You will have
to subpoena the record keeper (QDRO which is required by
ERISA) of that retirement fund and get that exact amount at
the date of filing. NOT the date the divorce is granted.
v. No amount that was in the account PRIOR to the marriage can
be divided. Nor can the spouse have any of the dividends, or
interest that have been awarded prior to the marriage. Hire an
accountant!
xx. Employee benefit plans
1. If primarily paid for by the employer
a. Unlikely to be considered to be marital property
xxi. Others
1. SSI not divisible in a divorce
2. Railroad Retirement Act and Uniform Services Former Spouses Protection Act,
supersede state law regarding division of pensions and retirement accounts
under those acts
xxii. Exception
1. If the property being claimed as separate property was being used
REGULARLY** for the COMMON BENEFIT of BOTH spouses.
2. This is a QUESTION OF FACT.
3. Regular use is to be determined on a case-by-case basis. Using once isn’t
regular. Twice might not be regular. At some point, the more it is used, the more
likely it is to be considered marital property. There is NO RIGHT LINE RULE.
4. Basic rule – if proceeds from the asset have been used regularly, asset becomes
marital property.
II. Spousal Support/Alimony/Palimony (ANALYZE EACH ONE) - CHARACTERIZE (Reimburse,
Rehab, Transitional, Periodic (in gross or lump sum).
a. Not terribly common in the AVERAGE CASE
b. Gender Neutral
i. Traditionally, wives were parties that received alimony because they stayed at home,
whereas men worked outside the home to care for the family.
ii. Orr v. Orr – Alabama-Case for Gender equity in Alimony Payment
c. Why
i. Needs of spouse – most common (THIS IS WHY YOU AWARD SPOUSAL
SUPPORT):
1. Disability
a. Unable to support through employment
2. Has custody of the disabled child and prevents employment outside of the home
3. Unfairly disadvantaged post-divorce due to arrangements made in the marriage
ii. Fairness – most common
iii. Punishment
iv. Restitution
v. Recognizing expectations
vi. Honoring partnership
vii. Compensation for specific losses and lost opportunities
d. Look at:
i. Duration of marriage
ii. Age and condition of parties
iii. Time needed to obtain training and employment
iv. Ability of spouse to pay and meet their own needs
v. What contributions were made to marriage
vi. SPOUSAL SUPPORT CANNOT IMPOVERISH THE OBLIGOR SPOUSE
e. Characterization (ANALYZE once you looked at factors and why)
i. Reimbursement
ii. Rehabilitative
1. Intended to assist spouse in gaining position would have held if not for the
sacrifices made on behalf of marriage
2. If new position or job was foreseeable at the time the support amount was set
a. Court will not modify on these grounds alone
i. Must show recipient has sufficient income and employment
was not anticipated at time or original order
1. Example: Divorcing and will open a restaurant
a. NO INDICATION self sufficient because
restaurant was being opened and court knew
about restaurant when set spousal support.
iii. Transitional/bridge
1. Need time to get life in order
iv. Periodic, permanent, or indefinite
1. Usually awarded after a long marriage and one partner is economically
disadvantaged
2. Usually in effect until the person receiving remarries, cohabitates (and
substantially decreases spouse’s financial needs), or dies
v. Lump sum
1. Included in property division
f. If you feel it is a bad judgment, can seek appeal within 42 days
g. Alimony pendente lite – temporary alimony pending final order.
i. Could be lump sum
ii. Could be monthly allocation to certain bills
h. Alimony in Gross
 i. An award that is in the nature of a property settlement. Awarded when equity compels
that money exchange hands in order to do equity. Determined based on the
circumstances.
ii. Part of property settlement in divorce
1. Cannot be modified
2. Can be appealed
3. Unable to vacate, change, once time has run to appeal
iii. Characteristics:
1. Set sum;
2. Paid at a set time;
3. Non-modifiable
a. Death doesn’t termination obligation to pay
4. Non-bankrupted
5. Non-taxable
i. Periodic Alimony – Can be modified
i. For one purpose only: to support a spouse who cannot support themselves after the
divorce.
ii. In Alabama, use the term periodic alimony if you want spousal support.
iii. The court is trying to MAINTAIN THE STATUS QUO of the marriage for both parties.
Impossible! Two parties living apart with have duplicate expenses.
iv. To get periodic alimony, must meet the threshold:
1. The person seeking periodic alimony must prove:
a. They need it; AND
b. Spouses ability to pay
2. There must be established through EVIDENCE.
v. Characteristics:
1. Not a set sum
a. Set sum until further order of the court
2. Not a set period
a. Continues until there has been a proven, material change in economic
circumstances. Such as remarriage, open cohabitation, death, etc.
3. IS modifiable
4. Non bankrupted
5. Taxable
a. There is a tax break to the payor and it is treated by the IRS as ordinary
income to the payee
vi. You list everything the spouse has to pay for in a month in order to live reasonably and
then you look at her net income. If you determine they are $1000 a month short, must do
a similar calculation of the other spouse’s income to determine if they can pay it. You
have to get this information through discovery. Through interrogatories that are done
early on. Ask them to list all of their anticipated expenses and the amount that goes with
each.
vii. Court takes into consideration the ENTIRE marital estate and what assets have went
where.
viii. Alabama– periodic alimony that has already been paid prior to a modification or
termination when the other spouse had already remarried or acted in a way that
terminated or modified the alimony is non-recoverable.
1. Must file a motion to terminate or modify period alimony. File this WITH a
motion for escrow. This sets up a special escrow account where the money will
be held until the court makes a ruling. It they win, get money back, if they lose,
prior spouse gets it.
ix. Periodic alimony is terminated when:
1. Death;
2. Payee Remarries;
3. Open Co-habitation with a member of the opposite sex;
 a. This is a question of fact for the court to determine on a case-by-case
basis. Could try the same case in front of two judges and get a different
outcome.
b. Alabama– living with a member of the same sex, even if romantically
involved, doesn’t terminate alimony. However, might be a material
change in economic circumstances.
i. Courts look for:
1. Is she receiving support from this new man?
2. Do they have more than the occasional sexual
intercourse?
3. Looking for a romantic relationship from which she
is financially benefitting in some way.
4. Modify When
a. (1) Material change in economic circumstances since the support order
was issued (2) and unforseeable. Might still lead to termination.
i. Modifying amount
ii. Change to Payee circumstances
iii. Change to Payor circumstances
b. The spouse moving for the change has the burden of proof
c. REMEMBER- COURT ONLY HAS JURISDICTION TO MODIFY IF
A ORDER WAS IN EFFECT OR RESERVED SMJ at the conclusion
of divorce proceedings. IF DID NOT, cannot go back and award later.
j. Deductible and taxable prior to 2019
i. Periodic not taxed as income and no longer a deduction for payor after 2019
ii. If divorced prior to 2019, can continue in this arrangement as long as alimony
remains in place.
k. Enforcement
i. If reduced to judgment, can enforce as any other judgments
1. Must be unpaid to become a judgment
2. Payee spouse can make collection attempts
a. File Garnishment
b. Lien on property
ii. Civil contempt
1. Rarely has an affect on payee
2. Could impose incarceration in the first instance
iii. Criminal Contempt
1. Higher burden
a. Have to show WILFULL non-payment
2. Inability to pay may be a defense
l. Reservation of right to seek alimony
i. Do this in your pleadings. People try to hide money when faced with a divorce. This
ensures that you might be able to get it later if the circumstances change. The issue of
periodic alimony is disposed of if it isn’t proven, unless it is reserved.
ii. In Alabama, you ask for a reservation of right to seek alimony in the future. Only do this
in specific cases.
m. Palimony- unmarried equivalent of spousal support
n. Legal Separation
i. Called SEPARATE MAINTENANCE
III. Child Support
a. At common law, DIE and no longer have to pay child support
i. Under Uniform Marriage and Divoce
1. Must still pay!
b. In general (not just Alabama)
i. From birth to age of majority
ii. Can be retroactive
iii. Can accrue interest
 iv. Can have heavy burden on poorest parents
c. Parent-child support obligation has been called by courts as absolute
i. Note:
1. Parent is a minor, support obligation may be imposed on the GRANDPARENT
d. Who is obligated
i. Parents
1. Grounded in legal parenthood
a. Remember
i. Biological parent responsible
ii. Adoptive parent
e. Child Support and poverty
i. Temporary Assistance to needy (bridge gap until child support received)
1. Public Assistance
2. Federal Program distributed to states
3. Time limitations
4. Work requirements
ii. Government involvement
1. Custodial parent applies to TANF
a. Assign right to pursue child support
2. Government pursues child support from non-custodial parent to collect
a. Government brings action against the non-custodial parent
b. Non-custodial may have paternity established
3. Government reimbursed from NCP support payment
f. Alabama Rule 32 – Child Support Statute

i. Alabama creates a formula. Once you have the mother and father’s income, there is a
form in the code where you can fill in the numbers and you get a figure at the bottom.
ii. Child support in Alabama is to continue until the child turns 19.
iii. In order to terminate child support, must file a petition for termination of child support.
Cannot just stop paying or you risk being held in contempt. There are some terminating
factors:
1. Marriage of the child
2. Emancipation of the child
a. Emancipation of a child cannot occur until the child is 18 in this state
3. Child is self-supporting
g. Support for disabled children
i. Most states impose support obligations where the onset of the disability was while the
child was a minor
1. Burden on parent seeking support beyond majority
h. Imputation and Modification - MANIPULATING INCOME TO GET OUT OF CHILD
SUPPORT: -- DONE FOR NONCUSTODIAL PARENT!
i. When could happen
1. Could be making $200k but chooses not to
a. Willful underemployment to manipulate child support numbers
2. Unemployment
a. Could impute at minimum wage
ii. SO court imputes income based on a relevant time period
a. Based on prior earnings
b. Ability to earn
c. Local job market
d. Educational attainment
i. Enforcement – try to ensure compliance
i. Late 30 days
1. Civil contempt in the 1st instance
ii. State or federal sanctions
1. Revocation of license
 2. Inability to obtain a passport
3. Inability to avoid debt in bankruptcy
iii. Criminal contempt
1. Has to show had the money and refused to pay
a. Goes to jail
j. Forms in Alabama– must be submitted to court- Alabama Administrative Office of the Court
Website
i. CS-41 is the child support income affidavit
1. Each party must fill out the affidavit
ii. CS-42 is the child support guideline form
1. Worksheet is available – CS 42 S
a. Calculates the % shares of income
b. Pulls from the Child Support chart automatically!!
i. Need to check the Schedule of Basic Child Support
Obligations chart once the chart has been filled in. Check for
accuracy.
iii. CS-43 (notice of compliance form) is when parties want to agree to deviate from the
number calculated on the CS-42 guideline form
1. The Court has to approve the reason for the deviation
2. Must state what the amount would be
3. Courts will generally not deviate toward a lesser amount:
a. Payment of extracurriculars
b. Payment of Mom’s Car note
c. Why?
i. Child support is the right of the CHILD and for the CHILD’s
basic needs!!!
iv. CS-10 (modification petition for support)
v. Income Withholding for Support Form (NOT MANDATORY)
1. Mandatory for TANF (if received TANF then diverted until paid back)
2. Submitted to the employer to withhold funds according to the court order
3. Can withhold
a. Current child support
b. Past due child support
c. Current cash medical support or Past Due
d. Current or past due spousal support
4. Employer can respond as to why they will not comply
k. Calculation
i. INCOME SHARE MODEL
1. Add income together
a. THIS IS THE INCOME TO USE TO DETERMINE THE STATE SET
CHILD SUPPORT
i. Example: TOTAL combined income is $10k and state says
$2000 at $10k
2. Then divide the individual parents income into that total
a. Mom 4k = 40% of $10k
b. Dad 6k= 60% of $10k
3. Use that percent for noncustodial parent
a. HAS TO PAY 60% of the $2k state set amount or $1200!!
ii. PERCENTAGE OF INCOME MODEL (SOLE CUSTODY)
1. TAKE INTO ACCOUNT only the income of the NON-CUSTODIAL PARENT
a. See what income is
i. $6k as example
b. See what has to pay at $6k
i. Example is 25% at $6k, Now multiply by 25%
iii. PERCENTAGE OF INCOME MODEL: SHARED CUSTODY
1. Some states adjust for parenting time
 a. Such as 50/50 custody arrangements
2. Use combined income less deductions and then use the % for that income
a. Example: Combined income $8100
i. Pension and taxes: 1600
ii. NET combined Income is $6500
iii. For $6500- combined net income: child support is 20%
iv. Now look at noncustodial parent net income only and multiply
by 20%
iv. By congressional mandate
1. States make a rebuttable presumption that the guidelines amount is the correct
amount of child support payable
v. State payment charts stop at a maximum income and number of kids
vi. Based on parental income
1. Includes sources not identified by the IRS
2. Combined income from both parents
3. Alabama has a chart to determine the statutory base amount (number of
children, etc)/
4. Once the statutory base amount is computed, add other extraordinary medical
expenses and child support to that base number
5. Then take the total income
a. Divide noncustodial income into total income to get % of wht they
make of the total income (example: noncustodial is at $2k and custodial
is $1k= total income $3k ($2k/$3k= 66%)
b. Multiply this % to the child support obligation calculated above
i. THIS will be the total obligation
vii. Other calculation methods
1. % of income
a. Take non-custodial income
b. Use statutory chart to find income and % that should come from that
income
c. Multiply % on chart by non-custodial income
d. Get child support number
e. Add extraordinary expenses
2. Melson
a. Preserve a certain amount of income for the parent to support
themselves
l. Modifications
i. Alabama
1. Show significant enough change in circumstances that the new child support
amount is 10% less than the old one.
2. Generally not retroactive
a. Will accrue arrearages at old rate until files for modification
ii. First in time, first in right
1. Preference for the first child’s family
2. Why
a. Parents should plan for additional children based on increased earnings
– NOT by decreasing payments to existing children

IV. Post-majority College Support

a. No obligation to continue support beyond age of majority
i. Burden on custodial parent to show support should continue
b. Depending on where you practice, your state might have post-minority college support. Alabama
has NO post-majority college support!!! NY PERMITS and its up the Judge
1. Alabamacannot order it
2. Can contract in settlement agreement
ii. Bayliss v. Bayliss – Alabama
 iii. For 24 years, the Bayliss case provided for post-majority support in this state. A whole lot
of kids got to go to college with the help of their parents, who otherwise wouldn’t have.
iv. Christopher Case – overruled Bayliss
1. Challenged Bayliss case
2. Claimed violated common law doctrine that no support was due to a child who
was no longer a minor, challenged on constitutionality, etc.
3. Supreme Court of Alabamafound Bayliss UNCONSTITUTIONAL.

Children in a Divorce (think through if moved recently…need to apply UCCJEA!) BEST INTEREST
DETERMINES CUSTODY!!!!!

I. Constitutional Concerns:
a. Meyers
i. Liberty right in Family
ii. Right, to conceive and raise a child
iii. Deemed essential
b. Pierce
i. The child is not a mere creature of the state
ii. Those who nurture them and direct their destiny have the right and duty to recognize and
prepare for additional obligations
c. Prince
i. Custody, care, and nurture of the child reside first with the parents
d. Troxel
i. Third-party grandparents have no right to visitation
ii. The parent directs the child’s care, custody, and control

II. What does custody mean:

a. Legal Custody
i. Decision-making power
1. In Divorce
a. Both typically have legal custody
b. Physical Custody
i. Where the child lives
1. Points of contention in a divorce
III. If parents can come to a settlement about what is in the best interests of the children, this is the best thing
that they can do. If they cannot settle, then Their only option is to go to court and allow a stranger to make
this decision! They are entrusting the welfare and best interests of their children to a stranger! What the
judge can do is very limited. The judge ultimately makes his determination based on a snapshot of what he
thinks the family is. Their mood will come into play.
IV. There is a preference for both parents to have some sort of custody, if possible. Previously, courts
placed children in the sole custody of the mother and awarded the father visitation.
V. Judge’s Options in a Custody Case:
a. ALABAMA
i. Will differentiate between LEGAL and PHYSICAL Custody
1. Will make an order ON BOTH
ii. No 50/50 presumption to joint custody in ALABAMA
iii. There is a presumption that a domestic violence victim should receive joint custody
iv. Each case is looked at case by case
v. Alabama has a program called: Parents are Forever for contested custody cases
1. Income-based program
2. Mediator helps parents by providing information on standards
b. Other jurisdictions (Shared physical custody approaches)
i. DC- Rebuttable presumption that joint physical custody is in the child’s best interest
1. DC has a Program for Agreement and Cooperation (PAC) initiative to help with
co-parenting issues
 ii. CA: Joint custody is in child’s best interests only when both parents agree to share
custody
iii. MN- No presumption for or against joint custody
iv. IA: Courts assume maximum continuing physical and emotional contact with both
parents, but custody must be based on particular facts of case
v. AZ: If parties cannot agree to parenting time, they must each submit a proposed parenting
plan
c. Sole custody to one parent and visitation to the other (Sole legal and physical custody)
i. Court has the inherent authority to say that there will be no visitation or no visitation
pending counseling for some period of time.
ii. Supervised Visitation
1. The court has A LOT of authority to protect the best interests of the child. Court
can say that after counseling, they can have 1 hour a week of supervised
visitation.
2. The court will order/appoint someone to serve as the supervising party.
a. As an attorney, you should NEVER volunteer to supervise any
visitation. You are an attorney, not a social worker. This is dangerous!
The person you are supervising might hate you! You have taken their
kid away and now you are at every visit they have with them.
b. Also say no if client wants you to be a witness to some behavior. Then
you are subjecting yourself to be called as a witness and you cannot be
an attorney and witness in the same case.
iii. VISITATION
1. Usually because of
a. Drugs
2. Issues
a. Withholding visitation
b. Talking badly about the other parent
c. Child does not want to go
3. Remedy for Denial
a. Could result in
i. Modification to make up time with parent
ii. Contempt
iii. The court could change the custody agreement
iv. Fines
4. Changes in visitation DO NOT NEED TO MEET THE MODIFICATION OF
CHILD CUSTODY AGREEMENT. ONLY WHEN CHANGING CUSTODY
5. UDMA on Visitation § 407
a. A parent not granted custody of a child is entitled to reasonable
visitation rights unless the court finds, after a hearing, that the visitation
endangers the child
b. ALABAMA
i. Governed by STATE LAW not by statute
d. Joint Legal and Physical Custody
i. Husband and wife differ so greatly on what is in the best interest of the child that they
spend all this money and time fighting over it, and at the end of the day, the court says
that they will share custody. This usually doesn’t work well at all, for obvious reasons.
Only works when you have very mature parents! You don’t see a lot of these awards.
ii. What it means: Parents have an equal say in everything. However, neither of them has the
final say! Some agreements explicitly state that one parent will have the final say.
iii. ALABAMA: 30-3-152 JOINT CUSTODY – if in best interest or parents request IF NOT:
1. Consider
a. Lack of agreement
b. Past and present ability to agree
c. History of child abuse, spouse abuse, kidnapping
 d. Ability of parents to encourage love, affection and contact with the
other parent
e. Primary Physical and Joint Legal Custody***
i. MOST COMMON!!
ii. If the other parent has not done something that puts you in category 1, this is what you
want! This visitation is typically every other weekend. This person can have visitation
and opinions in medical care, education, and religion. If they have a difference in
opinion, might end up in court over it. Might want to include these opinions in the
custody agreement.
f. Wards of the State
i. This is very rare and should be the LAST RESORT! If there are concerns that neither
parent is capable of parenting, this comes into play.
g. Sole Custody
i. Don’t really say this anymore in Alabama. If sole custody is awarded to one parent,
means the other has NO RIGHTS WHATSOEVER!
VI. “Tender Years” Doctrine
a. Alabama and almost every state used to subscribe to this. People still toss the term out
occasionally.
b. Presumes that a child 7 years old or younger should be placed in the custody of their mother.
There was a tremendous bias in favor of the mother.
c. Ex Parte Devine
i. This doctrine was found to be unconstitutional. It was found to be gender discrimination
on its face. To be held constitutional there has to be an important state interest that the
law is protecting. There is no proof that women are naturally better to raise children.
After this, it is now the law that both parents have equal footing for child custody.
VII. “Best Interest of the Child Standard” (CANNOT DILUTE A FIT PARENT’S CONSTITUTIONAL
RIGHTS – McDermott) - Domestic abuse is not in best interest of child
a. Replaced the “tender years” doctrine. It applies in every case for the initial (the first ever) custody
determination. That is typically when the mother and father divorce. They each come in with equal
standing. There are a lot still applying the tender years doctrine.
b. You should be able to make an educated prediction on who gets custody of a child just by
weighing each of these categories.
c. Best Interest of Child Framed
i. Fight between fit parents
ii. State proceedings where the state injects itself into parenting situations to protect the
child
iii. Third-party custody disputes
d. Best Interest Factors that the court take into consideration: ALABAMALOOKS AT THE
TOTALITY OF THE CIRCUMSTANCE (NOT CHILD WISHES- EQUALLY FIT would
probably mean joint custody!
i. Sex of the children
1. When the children are smaller, gender of the children doesn’t carry as much
influence. As they grow older it will take on a greater significance.
2. The older they are, the more of a preference they show for wanting to live with
the same gender parent carries a huge weight. If they cross and want to live with
the opposite parent is does not carry as much weight.
ii. Age of the child
1. Blends into gender
iii. Personal characteristics of each of the children
1. What is it about “that” child that makes it more important that they reside with
“that” parent? Whatever makes this child distinct? It may be a matter of the
emotional bonding. If the young person is very religious and one parent is not,
something like this can sway custody.
iv. The Respective home environments that they will provide
1. Literally – WHERE (physically) will these children live? Get your client to take
photos of every room that the child will live in (clean it up first). Take photos of
 the exterior of the home. Do this so the judge will have some confidence that the
physical structure is suitable for a child.
2. If the other party does not live in a suitable structure – either get your client or
PI to go by and get photos. The courts in Alabama: usually want each child to
have their own room. You cannot have the children sharing the same room,
especially if they are of the opposite sex.
3. You have to offer these as a composite exhibit.
v. What will be going on in the home? How many people will be living there?
1. Too many people crowded into a house, will weigh against parent.
2. Live in boyfriend/girlfriend – this is directly relevant to home environment.
They usually do not like this at all. Client needs to choose boyfriend and
children. That is the bottom line.
vi. Parent’s respective ages
1. Age and maturing make a big difference. Too old and too young plays a part.
vii. Character of parents
1. People with big secrets to hide better not get involved in a custody battle.
2. Anything unsavory that can be proven about this parent is relevant. Criminal
history is a big negative.
viii. Stability of parents and home
1. Who can hold a job and who can’t? Has one party moved over and over since
the divorce?
2. The court wants to find out who is stable and can provide some sort of stability
for the children. Passing bad checks, evictions, etc. you are describing a lifestyle
that is unwholesome for a child.
ix. Mental stability
1. With custody, the psychological patient (psycho therapist) privilege is waived
and does not apply. Subject to discovery. This is ANY history. Before the battle
and during. You can test for reality of mental stability by asking the court to
order a mental evaluation. This is like asking for a drug test. They will order
both parties of the children to undergo the evaluation. You just don’t know how
the report will come out. The psychologist must be paid. This adds to the cost of
the case.
2. Ask your client if they have any mental issues. Have you ever told anyone that
you felt suicidal or if they have been diagnosed for anything?
x. Physical health of each parent
1. The judge is looking for someone who is physically strong enough to care for
these children. Is a physical impairment there that would disable them from
property taking care of the children? This can often seem cruel.
xi. The interest each parent has displayed in the past to provide for the child’s needs
1. This is truly one of the MOST SIGNIFICANT of all the factors
2. The court is looking to see who has been the primary caregiver. If all things are
equal, the one who has provided the primary care will be awarded custody. This
is determined by the amount of time the parent has spent with the child prior to
filing the divorce. The point is that a child is accustomed to a certain way of
living.
3. You cannot beat a stay at home parent in a custody battle. Unless, they go off the
deep end and do something dangerous during the divorce stage. We want the one
with the highest money making potential in the market place. This is not
intended to hurt the party. It is always about the best interests of the child.
xii. Relationship of each child to his/her siblings
1. Do we want to separate these children from each other? They may be relying on
each more and more during the time of divorce.
2. In the state of Alabamathere must be a compelling interest to separate siblings.
The presumption is that if there are several siblings they are better off staying
together. This can be overcome by showing that the children are bonded to
different parents to different degrees to strengthen the bond.
 3. Age of siblings plays a factor to some degree.
xiii. Relationship of each child to each parent
1. This is personal dynamic, you describe to the best of your ability. This is where
the discussion of whom has bonded the most gets to be huge.
xiv. Expert Testimony
1. Dueling psychologist. Usually child psychologist. Is one side has one the other
should have one – just to be on the safe side. Testimony of the child: child of
sufficient age and maturity can give their opinion on who they want to live with.
At no age is the child’s testimony dispositive? If they understand the nature of
the oath and the affairs, a court may allow testimony. There is no certain age. If
the judge does not want the child to testify you can ask the judge to qualify the
child or you can say “your honor if you do not allow the child to testify than I
would like an offer of proof.”
2. Ways to testify:
a. Can testify in judge’s chambers (on camera). Only the judge being
there. If you object to this, it can’t be done; OR
b. In the alternative is on camera but the attorneys are present and can
cross exam; OR
c. In open court
VIII. Guardian Ad Litem
a. Attorney appointed to investigate on the children’s behalf. If the court does not appoint one you
can request one for the children. They will report and give their opinion recommending who gets
custody. Parties pay for the guardian ad litem.
IX. Inchoate
a. Unmatured claims. Can be substituted for equitable claims. Standard of proof is always what is in
the best interests of the child. Father and mother come in with equal standing; however, most of
the years in Alabama up until about the 70’s the tender years doctrine applied.
X. Modification of Child Custody
a. Standards
i. Must be in the child's best interest
ii. Require MCLENDON below
iii. Place burden of proof on the movant
iv. Some jurisdictions require a certain amount of time
1. Settling in period for stability of children
v. Some states (not Alabama)
1. The change be unforeseeable at the time of the initial determination
a. LIKE – had a girlfriend and had already proposed and knew living
would change. NOW says want to modify…u knew that b4!!

b. Best interests of the child test – must always argue what is in the best interests of the child!
c. Once child custody is adjudicated, it would be best if it would stay that way until the child reaches
the age of majority and they do not adjudicate anymore. However, this isn’t always the case.
d. In a lot of states, they keep it the “best interests of child” standard when you go back to modify.
Some states require a heightened standard of proof to come back and modify custody. The purpose
of the heightened standard is that the court has already heard a lot of evidence about these parents
and children and they have made an adjudication and there is no reason to change that adjudication
unless there is a strong showing of proof that goes beyond the best interest of the child.
e. Alabama Modification of Custody Based on the Form:
i. Currently has Sole (Has physical and legal custody)
1. In Alabama, must meet McClendon
ii. Currently has Primary Physical
1. Joint Legal but one party has sole primary physical Custody: In Alabama, must
meet McClendon
iii. Currently has Joint Physical and Legal
1. Must meet the best interest of the child's standard
f. McClendon Standard for Alabama: (CHANGE IN CUSTODY) NOT VISITATION!!
 i. THERE IS NO STRICT TIME LIMIT TO REQUEST A MODIFICATION BUT NEED
SIGNIFICANT CHANGE IN CIRCUMSTANCES.
ii. The parent seeking a change of custody bears the burden of proof
iii. A change in custody must SO materially improve the circumstances of the child so as to
outweigh the inherent disruption of a custody change.
iv. This is a HIGH burden to meet.
1. show substantially changed circumstance
a. Looking for what has changed since last time
i. Relocation
ii. Interference in visitation as intent to destroy parent-child
relationship
iii. Abuse
iv. Drug or alcohol abuse
v. Health issues
vi. Unstable home or frequent changes in marriage, employment,
child school or daycare
2. Must materially promote the best interest of the child
a. ARTICULATE MATERIAL BENEFIT TO KIDS
b. MUST OVERCOME any DISRUPTIVE AFFECTS TO CHILD

g. In re Marriage of Kovacs
i. Husband was awarded custody, on appeal, using the presumption that the primary
caregiver in marriage should be given custody in dissolution, the court determined that
the wife should be awarded custody. The court determined that the court of appeals erred
in using this presumption. The prior stay at home mom was unfaithful while her husband
was in California trying to find work and a new home for his family. She then got a DUI,
got in an accident, and the kids had to be taken into foster care for two days due to her
behavior. Husband’s expert found the wife to have a personality disorder that hurt her
parenting abilities. Husband’s expert was better qualified and did a lot more work that the
wife’s.
ii. Case is important because if you are going to have dueling experts, if client has the funds,
want the better credentialed expert! Someone with a good reputation in that court!
Sometimes have to ask around. This case also shows us that the factors we have
discussed for determining custody are VERY important!
h. Shared Parenting – after dissolution (modification)
i. Parenting Plans
ii. Parenting Coordinators
iii. Programs to review emails/tests for hostile language
iv. Communication Apps
v. Shared Parenting Calendars
vi. Tie-breaking Authority
1. Can put this in the order per dissolution
i. Children’s Bill of Rights
i. Robert Emery
j. Palmore v. Sidoti (DOESN’T WANT CHILD WITH NEW BLACK SPOUSE)
i. Wife was awarded custody, but husband filed to modify custody because the wife is
involved in an interracial relationship and has a black man living with her which she
ended up marrying later. He filed a petition to modify custody on the grounds that is
wasn’t in the best interests of the child for him to be in an interracial household. The
lower court modified custody and agreed with him! In 1984!! This case goes all the way
to the US Supreme Court!
ii. US Supreme Court found this to be a landmark case in how courts should look at custody.
There are no grounds to treat parties differently based on race in a custody suit. The has
said that race, standing alone, cannot be a basis for modifying a child’s custody.
k. Lesbian, Gay and Transsexual Parents
 i. In states where those relationships are regarded more highly, it is not likely to be held
against a parent in a custody battle that they are gay or transsexual. In Alabama, that is
not the case. Our chief justice has written scathing opinions on the unnaturalness of gay
relationships and that it is inherently not in the best interest of children to live with a gay
parent. Howell says that if you have a gay client who was previously involved in a
straight marriage, you better have a good strong case because the court system in
Alabamahas not moved must at all in the particular respect.
XI. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
a. Example:
i. Move and file for divorce
1. Can file divorce in new state
2. Might establish personal jurisdiction for
a. Settlement agreement (property)
3. BUT: Has no jurisdiction for custody due to move!!
a. Has to establish home state! This is a UCCJEA jurisdictional question.
b. These jurisdiction cases are often so close. The act says that if necessary, the judges in the two
states should call each other and discuss the pros and cons as to which state has a better claim to
jurisdiction. This is the only law in pretty much any discipline where it says in the formal act that
the judges need to talk it out.
c. 3 categories for jurisdiction
i. Jurisdiction for an INITIAL custody determination
1. If home state
a. The child’s home state is where the UCCJEA says the child’s custody is
to be adjudicated for the first time. For a child to have a home state, the
child and a parent or someone acting as a parent (legal guardian) have
resided in that state for 6 months immediately prior to the filing of the
petition to adjudicate custody.
2. If no home state
a. If there is no home state, then jurisdiction lies in the state where the
child and one parent have SIGNIFICANT CONNECTIONS, and where
SUBSTANTIAL EVIDENCE relating to the child is available.
ii. Jurisdiction for Custody Modifications
1. Baseline rule: the state where the initial custody determination is made has
continuing jurisdiction UNTIL:
a. NONE of the parties live there anymore. The you must find the state
with the MOST SUBSTANTIAL CONNECTIONS to the child and
where the MOST EVIDENCE exists.
iii. ANY STATE can take jurisdiction for MODIFICATION, IF:
1. The child has been ABANDONED in that state
2. The child is suffering from an EMERGENCY of some sort
a. Example: being mistreated while in this state due to custody
3. The child is here and NO other state claims jurisdiction
a. Example: no other state can step forward and act in the best interest of
the child and the child is here
4. Any state may take jurisdiction for modification IF any other state would
be an INCONVENIENT FORUM
a. This is the one where the parties argue, argue, and argue until the
judges have to get on the phone and determine which forum is most
convenient for all the parties.
XII. Alabama’s Parent-Child Relationship Protection Act (Relocation Act)
a. In Alabama, if the parent with custodial rights of a child moves more than 60 miles from their
principal residence, it triggers a duty to notify the other parent. Moving parent must send a
significant amount of information to the other parent by CERTIFIED MAIL. MUST INCLUDE:
i. Date leaving;
ii. New address;
iii. Telephone number;
 iv. School children will be attending; AND
v. If necessary, a proposed change in visitation.
b. Failure to give this notice results in a number of possibilities:
i. Damages and attorney’s fees to the other party for failure to give notice;
ii. Can order the person to assume all of the expense of the parent who has been left behind
to travel to visit their children; or
iii. Can hold the party in contempt and put them in jail
c. If a client does not agree to the move after they have been notified, you send the moving parent a
notification that you do not consent to their leaving. You also file with the court a petition for
change of custody. This covers ALL of your bases.
d. In Alabama, the presumption is that a change of principal residence is NOT in the best interests
of the child! If all things are equal on both sides, the kids will probably be ordered to stay with the
parent living in Alabama due to this presumption. Court might order that if the moving parent
stays in the current residence, custody stays with them, but if they move, other parent gets custody.
They might have to decide whether or not to leave their kids behind.
e. If one parent is contesting the move, they MUST be in a situation where they WANT CUSTODY.
You are arguing that they want to keep the child there and that they want custody. If someone
wants to prevent the move and modify custody, you want to look at:
i. How often they see the child? What their typical day looks like?
ii. Do they always take the opportunity to see their child?
iii. Where do they go to school?
iv. Do they make good grades?
v. Are they well settled as is?
vi. Extended family relationships? How often to they see grandparents and other family
members? How might this move affect those relationships?
vii. Teachers opinions on the move and how the child is doing?
f. You always want your clients to come to you with these situations BEFORE they decide to make
the move! Advise clients in advance of this presumption.
XIII. Domestic Abuse
a. Alabama
i. Presumed not to be in the best interest of the child for the abusive parent to have custody
1. Presumed not in the best interest of child to be placed in sole custody, shared
legal custody, or shared physical custody with the abusive parent.
a. Technological Abuse (may invoke for technological abuse(
i. 34 US s. 12291
1. Using a form of technology as a means or pattern of
behavior that occurs within domestic violence, sexual
assault, dating violence or stalking is intended to
stalk, control, harass, impersonate, exploit, extort,
monitor, threaten, intimidate by means of internet
enabled devices.
XIV. (PARENTAL KIDNAPPING) Moving a child to another country – Hague Convention
a. Uniform Child Abduction Prevention Act
b. State Criminal laws on parental kidnapping/child concealment
c. State civil tort remedies
d. First and second countries have all ratified the Hague Convention. This convention deals with the
WRONGFUL removal of a child from one country to another.
e. Removal is wrongful when it VIOLATES another parents CUSTODIAL RIGHTS, AND at the
time of the removal, the other parent was EXERCISING his right to CUSTODY or VISITATION.
The burden of proof is a PREPONDERANCE of the evidence. Everything is stacked in favor of
the parent who is left behind.
i. Once left behind parent has met this burden, the BURDEN SHIFTS to the other parent to
prove with CLEAR AND CONVINCING evidence that the return of the child to the
home country would expose them to physical or psychological harm, or expose the child
to a grave risk of harm.
 1. If the parent is not successful in proving with clear and convincing evidence
that removal would be harmful, the court will issue an order to return the child
forthwith.
f. State circuit and federal courts have jurisdiction over these matters. Need to file, preferably, in
federal court because they know much more about the Hague Convention than regular circuit
courts.
g. Many states in the US have recognized tort actions of child abduction for custodial interference. In
some cases, there have been awards of actual and putative damages against a mother for tortuous
interference with a parent’s custodial rights. In some states, a parent isn’t only at risk for being
found in contempt of court, but they are also at risk of being in debt to the other parent for the rest
of their lives.
h. Exceptions to the return obligation
i. 1 year defense
1. When the left behind parent does not file a Hague action until after the child has
been living in another country for OVER A YEAR. Question of fact and the
parent who took the child must establish how long they have been there and that
the child is well settled. If this is the case, this is a DEFENSE to the return of the
child.
ii. Defense of initial agreement
1. If you consent to your children moving to another country, there is neither
EQUITY or JUSTICE in permitting that parent to come back later and change
your mind and have the kids returned. If the moving parent can PROVE that
they INITIALLY AGREED, this is a DEFENSE as well.
a. The issue is that sometimes the mother will get the father to agree to a
month vacation and just not return.
iii. Authorities refuse to return the child
1. If the child objects to being returned and the child has reached an age of
maturity in which they can take into account the child’s views. However, this is
not dispositive. The fact that the child expresses an opinion does not mean that
the court must rule with the child.
iv. Exception once child turns 16
1. The convention only protects minor children. Once the child reaches 16 years
old, the convention no long protects them and there is not return obligation.
i. Abbott v. Abbott
i. Mr. Abbott’s ne exeat right is a right of custody under the convention.
ii. If the child in question has been wrongfully removed or retained within the meaning of
the convention, the child shall be promptly returned, unless an exception is applicable.
iii. Need to have an attorney from the other country to witness as to what the law of ne exeat
means in that other country. There have been many cases where the chief issue has been
what the law is in another country. In this case, they needed to know whether this ne
exeat right in Chile conferred upon him the custodial right over his child so that it should
be returned to the country.
XV. Third Parties and rights to Custody/Visitation
a. Grandparent Visitation
i. Troxel v. Grandville (parent has right to determine who child spends time with)
a. US Supreme Court case that found Washington State’s grandparental
rights statute grossly unconstitutional. However, did not find that all
statues permitting grandparent visitation are unconstitutional. Just
saying that the grandparental rights statutes must require the court to
give “GREAT WEIGHT AND DEFERENCE” to a fit parent’s
preferences.
ii. Alabamahas NO grandparental rights statute.
1. Natural parent has dies
a. Prior to that, the grandparent acted as defacto parent for the child
i. May have an argument for right to see child
b. McDermott
 i. Mom unfit
ii. Dad fit
iii. Grandparents want custody because dad’s job keeps him away for long stretches of time
iv. Cannot DILUTE fit parent’s constitutional rights to determine who has access to a
child
c. More v. City of Clevland (PULL FROM SLIDE)

Settlements, Decrees, and Dispute Resolution

 Biggest challenges for family law advocates

o Client management
o Case management
o Practice management
o Legal knowledge
o Ethical considerations
 Duty to the court
 Duty to the client
 Access to Counsel
 Client Confidences
 Duties to former clients
 Sexual Relations between lawyers and clients
 Misconduct
 Obligations to 3rd party/opponents
o Self care: Balancing advocating for others’ families with caring for your own
 Settlements, decrees, and dispute resolution. What am i supposed to learn for the final
 Divorce and family law:
o Settlement
 Parties reach resolution between themselves
 Reduce agreement to writing
 Incorporate in a judicial decree, so that it has the force of law
 Collaborative law
 Takes traditional lawyers role and changes it to eliminate adversity between
parties
 Lawyer advises client that works to create the agreement. But if no
agreement, I won’t continue to represent you in this matter
 Incentive to come to an agreement because if not, will need to
find another attorney
 Helps client understand this is a team effort
o Dispute resolution
 Mediation
 Preserve privacy
 Highlight points in which parties disagree
 Provides more flexibility and self-determine the outcome
 Parties take ownership in the process
 More likely to follow if involved
 Arbitration
o Decree
 All must be reviewed by court
 Adoption
 Divorce
 Annulment
 Opting to void a marriage
 Result of judicial
 Interpretations of divorce agreements Winegart v. Winegart
o Mediated agreements reduced to writing
  Can be set aside for fraud, duress or undue influence
 Waiting period in the settlement agreement and final
 Some parties want agreement set aside before it’s final:
 I don’t want to do it is NOT a good reason
 Alabama
 looks at the reason why before allowing
 looks at evidence to see why unbalanced settlement
agreement (if unbalanced then looks for)
 duress
 fraud
 undue influence
 Required disclosures before the agreement is accepted by the court
 Such as:
 Child support forms
 Acknowledgment of non-representation if one party is not represented
 Affidavit of testimony to prove marriage
 Income forms to support child support calculation
 Court must approve agreement before divorce is final. Most court approve, but may reject
support provisions or unconscionable provisions.
 Most of the time, its set aside because of vague provisions
 Like deviating from child support guidelines
 Court may reject
 Ultimate decision-making clauses may cause rejection in Alabama
 Must address child support if children involved
 Most settlement agreements in Alabamainclude the AlabamaParent
Child Relationship Protection Act
 Deals with moving and children
 Moving far enough to affect child visitation schedule
 Court decides

 Ethics:
o Can’t represent both parties to a divorce. Can’t lead parties to believe you are representing them
both
 Unrepresented party can sign form understanding attorney does not represent them
o Ghost write: Potential to “ghost write” pleadings and other documents for both parties, depending
on disclosure and consent
 Your name is not on it
 Drafting paperwork without engaging in representation
o Must deal fairly with pro se litigants
 Final decree
o Typically need to merge agreements into final decree
o Agreement is still governed by contract law but may not be subjected to family law modification
rules unless incorporated into a final decree of divorce entered by the court.
 Arbitration of family law disputes
o UAA: parties must agree to arbitrate
 Once arbitration has occurred, the court may (should) confirm award
 Court will review for error, and finding none, the award will have force of a judgment,
 Grounds for error: no agreement, arbitrator didn’t hear material evidence,
arbitrator exceeded authority
 Arbitrator was manifestly unfair
 If error is found, court may vacate, modify, or correct it
 States split on ability to arbitrate child support/custody
 Why
 Standards and guidelines are so strict
 Want judge who is trained reviewing
  If involves children and in state that won’t arbitrate custody or child support
 Then unlikely to see state participate in family law arbitration as much
o Mandatory dispute resolution
 Should judges have the authority to mandate mediation?
 Sometimes, mandating mediation is seen as:
 Abrogation of judge work
 Is use of a referee or other stand-in acceptable?
 Has authority to decide the case
 Stands in shoes of the judge
 Objections to using:
 Is judge abrogating responsibilities?
 Not elected or appointed
 Hired
 So no appropriate to have any other person to hear the case
 Montgomery Alabama
 Referee is used for child support
 Parties can decide they want judge to hear to case

 Divorce Litigation
o Generally follow the AlabamaRules of Civil Procedure or other state rules of civil procedure
o Parties: spouses, occasionally child rep or Guardian ad litem for children, but not as formal parties
 In rural county, everyone can be in the courtroom to hear case
 All people who have cases that day can hear private details heard in open court!
 In Montgomery, private
o Preliminary relief to preserve the status quo. Prohibit transfer, destruction, encumbrance of
property, maintain allocation of responsibility for debts and bills, custodial time, support
 Can be issued as a standing pendente lite (pending litigation order) or can be entered
upon party’s motion and hearing
 Best practice
 Every time you file a motion
 Always submit a proposed order!
o Default
 Generally disfavored in Alabama
 File for default
 Judge sets up hearing
 If don’t show up
 Default entered
 If does show up
 Then trial
 Many states require appearance, even when agreement has been reached
 If no agreement, bench trial typically. Some jurisdictions use juries, but not many
 Once decree is entered, it is a final judgment and can be enforced as such
o Can’t be modified, except as to child support/custody/other support due to change in
circumstances
o Property settlement cannot be modified
 Can be set aside on appeal
 Set aside
 Some kind of error
 Sahin v. Sahin
o What circumstances would be sufficient to reopen a divorce judgment a divorce judgment?
o What does Rule 60(b) require
 Attorney roles in family law cases
o Counsel for a party
o Counsel for a child
o Guardian ad litem
  Neutral roles
o Mediator
o Special master
o Judge
 Biggest challenges for family law advocates
o Client management
o Case management
o Practice management
o Legal knowledge
o Ethical considerations
 Duty to the court
 Duty to the client
o Self care: Balancing advocating for others’ families with caring for your own

NOTE ON DIVORCE AND PROPERTY OUT OF-STATE

Extraterritorial Injunctions
An extraterritorial injunction orders a defendant to do or not do something in another jurisdiction. Usually, it involves a
court in one state enjoining a defendant concerning a matter in a different state or in a foreign country.

An extraterritorial injunction is valid only if the court has in personam jurisdiction over the defendant. Such an injunction
is invalid if it seeks to exercise in rem jurisdiction over property located in another jurisdiction.

Note, however, that a court may order a defendant over whom the court has in personal jurisdiction to engage in an action or
cease engaging in an action concerning real or personal property located in a different jurisdiction.

An extraterritorial injunction can even order a defendant to transfer title in that property to the plaintiff, even though its title
is governed by the property law of the other jurisdiction. The court simply can’t transfer the title itself, as it could if the
property were located within the court’s jurisdiction.

If a court in one state permanently enjoins a defendant regarding a matter in another state, a court in the second state
generally will be required to give full faith and credit to the order of the first state’s court under Article IV, section 1, of
the United States Constitution. For an injunction to have such a preclusive effect in another state, it must be a final
judgment, as opposed to an interlocutory injunction.

In addition, the court in the first state must’ve had in personam jurisdiction over the defendant.

For instance, if a court in State A issued a permanent injunction ordering a husband to transfer title to his real property
located in State B to his ex-wife as part of a divorce decree, a court in State B would have to give preclusive effect to that
order. If the husband filed a subsequent lawsuit against his ex-wife in State B, claiming that she had no right to the property,
the court in State B normally would have to rule against him based on the prior permanent injunction from State A.