Family Law - Prof. Krause
(Exam will be shorter essays and focus on more specific issues; her grading focus will be on issue spotting)
PartI. Basic Principles of Family Law
Family law varies drastically and is state specific. Furthermore, family courts are courts of equity. "The term 'equity' denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men." It is important to note that whenever the word "fair" is involved, it means that a third party will decide what is fair for you. Despite the lofty ideals of "equity", what is thought to be "fair" in the mind of one person, may often times be thought completely unfair in the mind of another. Every single trial in family court is a bench trial (there is no jury), which is one of the subtle differences between criminal trials in family court and criminal trials in criminal court.
Matrimonial attorneys must have a retainer agreement per state specs and must provide your client with a statement of their rights. Must be paid on an hourly rate; it is illegal to do cases on a contingency basis.
The concept of family:
Family Court is to be used for: Civil actions in which the claim is unique or arises out of a family or family type relationship; question then is “what is a family type relationship?”
What constitutes a family?
Traditionally: was pretty formal, only 3 ways to be ‘family’; 1) related by blood, 2) marriage, or 3) adoption (these 3 aka the formal definitions of family)
Today: functional definitions of family – does this unit function as a family?; includes same sex relationships and unmarried co-habitants; Characteristics of a family: economic dependency/financial support, live together, emotional dependency/support, raising children/elder care, sexual/romantic intimacy (between parent figures), commitment to each other/shared decision making; functional definitions are becoming more popular/accepted
What is a ‘family type relationship’?: if 2 people are living together without marriage, they’d have the same characteristics of family as listed above; so, the question is ‘are they family?’; if not according to the formal definition, maybe so by the functional definition
A. Cohabitation Agreements, Pre-, & Mid-nuptial Agreements
1. Cohabitation Agreements
- Express vs. implied agreements
If unmarried co-habitants have an express contract/agreement, it will be enforced.
Implied and oral contracts/agreements are also enforced based on the conduct and the actions of the parties
Mitchell v. Oksienik 380 NJ Super 119 or 199 (App. Div. 2005): new case on unmarried co-habitants; pick at seminar she went to as one of the top 10 cases of 2005; issue: is a family part judge authorized to divide assets of an unmarried couple in the course of a domestic violence hearing?; held: yes, court may order division of assets under a joint entereprise including joint property held only in one parties names; aka Roccamonte the next generation; based on the facts of the case including duration of the relationship, ability to earn money after the end of the relationship, children involved, joint bank accounts used, etc.
Marvin v. Marvin (18 Cal. 3d 660): (Landmark Case 1976) In 1971, Marvin was sued by long-time girlfriend Michelle Triola. Though the couple never married, Triola sought financial compensation similar to those available to married spouses under California's alimony and community property laws. This dispute resulted in a landmark palimony opinion. After ruling in favor of Triola, the Supreme Court of California remanded the case to the Los Angeles Superior Court for a trial. On April 18, 1979, Judge Arthur K. Marshall ordered Marvin to pay $104,000 to Triola for "rehabilitation purposes" but denied her community property claim for one-half of the $3.6 million which Marvin had earned during their six years of cohabitation.[2] Both sides claimed victory. First case to recognize there were equitable reasons to be considered in cases like this. Three types of damages that could have been awarded: reliance damages (what she gave up based on the promise), expectation damages, (what she bargained for), restitution (to abate unjust enrichment/equitable principles); in the end, Triola got nothing; instead, the court found she benefitted (gained publicity) from being associated with him
Rehabilitative purposes: to go to school/better their career/etc.
In Re Estate of Roccamonte: The New Jersey Supreme Court held that a married man's estate must make a lump-sum payment to his longtime paramour and cohabitant, whom he had promised to support for the rest of her life. Here, Roccamonte and Sopko lived together for 20+ years, even though Roccamonte had never divorced his wife, whom he continued to support. Roccamonte gave Sopko money on a weekly basis, bought her presents, and made her a beneficiary of his life insurance policy. As she grew older, Sopko became concerned about her financial future in the event that she should outlive Roccamonte. She expressed these concerns to him, at which time he made an oral promise to support her financially for the rest of her life. After Roccamonte died intestate, Sopko made a claim against his estate for a lump-sum support award. A trial court granted defendant summary judgment, but an intermediate appellate court reversed. Affirming the intermediate appellate court, the state high court said that conceptually, enforcing a promise such as this is no different from enforcement of any other contract-other than a contract for personal services-made during a decedent's lifetime. Roccamonte's promise of support was not a promise to perform personal services, but a promise to provide financial compensation to plaintiff in exchange for her remaining in the relationship with him, as she did. Roccamonte's duty to provide that benefit was not discharged by his death and must consequently be discharged by his estate. The formation of a marital-type relationship may legitimately and enforceably rest upon a promise by one person to support the other, the court said. It is the undertaking of a way of life that involves providing companionship and forgoing other opportunities, among other things. Entry into such a relationship and then conducting oneself in accordance with its unique character is consideration that can be the basis for an enforceable contract, the court found. Accordingly, the court remanded for consideration of the appropriate amount of support. Send down from federal court to family court to decide how much money the girlfriend would get.
Kozlowski v. Kozlowski – first NJ case to comment on this issue; Any doubt surrounding the issue of whether cohabitators are entitled to alimony and equitable distribution under the statute was resolved by the New Jersey Supreme Court in Kozlowski v. Kozlowski and Crowe v. DeGioia. In Kozlowski, although the couple cohabited for 15 years as a "normal family unit" before separating, the court held that the statute limits awards of alimony to divorce or nullity actions and allows equitable distribution only in divorce. Likewise, in Crowe, the court held that the power to award alimony is strictly statutory. Therefore, alimony may be awarded only in a matrimonial action for divorce or nullity. Despite the statutory constraints, the New Jersey Supreme Court recognized the growing importance of cohabitation relationships when deciding Kozlowskiand Crowe. In Kozlowski, the court turned to the seminal case Marvin v. Marvin and adopted the California court's conclusion that "the mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many." In Crowe, the court acknowledged that "[i]ncreasing numbers of unmarried couples live together. The number of households comprised of unmarried partners rose from approximately 12,000 in 1960 to more than 1.5 million in 1980." With this recognition came the court's adoption in Crowe of the palimony doctrine. Besides alimony and property distribution, the ability to retain counsel and pay for ongoing litigation expenses are critical factors to a fair and equitable dissolution of a family-type relationship. Counsel fees are available to a successful party only in the following actions: divorce, nullity, support, alimony, custody, visitation and equitable distribution. Due to the specific language of the counsel fee court rule and narrow statutory definitions, the New Jersey Supreme Court in Crowe held that counsel fees cannot be awarded in a contract action for support brought by an unmarried cohabitator.
The theory of the cases above:Those cases were long term relationships where one made way more money that the other. If those were not the facts, the outcome would be more doubtful. The cases above not paid via alimony instead, via a lump sum; alimony ends when the payor dies; in the case above the payor was already dead but his estate was ordered to pay one lump sum
b. Requirements of an agreement: generally, the parties fully disclose their assets and income to each other; that they enter into the agreement freely and voluntarily (that is, neither party is coerced or under duress to sign the agreement); and that each party has had the advice of competent counsel as to his or her rights and/or obligations under the agreement.
c. Enforceability: The New Jersey courts long have recognized the benefits of pre-marital and pre-cohabitation agreements in that they are negotiated when a relationship is at its peak, and presumably when the parties are less likely to be guarded with each other. In this regard, courts generally will honor agreements between a couple and will uphold such agreements voluntarily negotiated by parties provided there was a full disclosure of the parties' assets and incomes, and each of the parties had the advice of competent counsel.
d. Domestic Partnership Laws:
Civil union, as offered in Vermont, offers more rights than what we have in NJ
MA and VT – rights were created by the courts then codified by the legislatures
Same sex marriage has been legalized in MA, HI (reciprocal beneficiary status, different from other laws – family members can enter into this kind of relationship with one another), and CA (can get an intestate of your partner’s estate)
NJ passed a domestic partnership act in 2003; difference between NJ and other states is that the bill started in the legislature here; creates a legal status that is available both to same-sex couples and to opposite-sex couples over age 62. (The potential loss of, or reduction in, retirement benefits for senior couples sometimes makes them reticent to marry, despite being in a committed relationship.) Although a central purpose of the bill is certainly to validate the rights of same-sex couples, it also has the effect of encouraging private dependencies rather than reliance on state benefits. The bill provides formal recognition of domestic partnerships, without recognizing a right of same-sex couples to marry. It also specifically states that New Jersey will recognize similar partnerships created elsewhere--such as a Vermont civil union or a Hawaiian reciprocal beneficiary relationship. In addition, the bill provides important personal rights such as the right of hospital visitation, often reserved only for immediate family members, the right to consent to organ donation, and the right to name one another in a health care proxy. To register for a New Jersey domestic partnership, a couple must share a common residence, be engaged in a "committed relationship of mutual caring," and agree to support one another if the need arises. They must also demonstrate existing financial interdependence like a joint mortgage, bank account, or designation of one in the other's will. Closely related individuals (such as siblings or even first cousins) cannot enter into a domestic partnership, just as such individuals could not marry.Domestic partners do not, however, have a free way out. The Act provides grounds for termination of same-sex partnerships much like the state's grounds for divorce, such as adultery, desertion, cruelty, habitual drunkenness, drug addiction, mental illness for more than 24 months, imprisonment for more than 18 months, and voluntary separation for at least 18 months. (A domestic partnership between individuals of the opposite sex over age 62 is automatically terminated when either enters into a valid, opposite-sex marriage.) But the court's jurisdiction over dissolution expressly does not include the power of equitable distribution. Finally, domestic partners also do not automatically acquire rights or obligations with respect to any children, which is different from the treatment of married couples.
2. Prenuptial Agreements: Are becoming more and more common – as people marry later and tend to have
stuff they want to protect by that time
Courts will enforce agreements made in contemplation of divorce, so long as the agreement is “fair and equitable”.Lepis v. Lepis
Uniform Premarital Agreement Act N.J.S.A. §§ 37:2-31 to 37:2-41 – Adopted by New Jersey in the 1980’s; before this, courts had to look at prenupts based on nothing else; drafting is imperative, one wrong word changes everything; the burden of proof to set aside the agreement is the one trying to set it aside
37:2-31. This article shall be known and may be cited as the "Uniform Premarital Agreement Act."
37:2-32. Definitions as used in this article:
a. "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage;
b. "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings;
c. "Unconscionable premarital agreement" means an agreement, either due to a lack of property or unemployability:
(1) Which would render a spouse without a means of reasonable support;
(2) Which would make a spouse a public charge; or
(3) Which would provide a standard of living far below that which was enjoyed before the marriage.
37:2-33. Formalities; consideration A premarital agreement shall be in writing, with a statement of assets annexed thereto, signed by both parties, and it is enforceable without consideration.
37:2-34. Contents of premarital agreement Parties to a premarital agreement may contract with respect to:
a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
c. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
d. The modification or elimination of spousal support;
e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
f. The ownership rights in and disposition of the death benefit from a life insurance policy;
g. The choice of law governing the construction of the agreement; and
h. Any other matter, including their personal rights and obligations, not in violation of public policy.
37:2-35. Premarital agreement not to adversely affect right of child support A premarital agreement shall not adversely affect the right of a child to support.
37:2-36. When premarital agreement becomes effective A premarital agreement becomes effective upon marriage of the parties.
37:2-37. Amendment or revocation of premarital agreement After marriage of the parties, a premarital agreement may be amended or revoked only by a written agreement signed by the parties, and the amended agreement or revocation is enforceable without consideration.
37:2-38. Enforcement of premarital agreement; generally The burden of proof to set aside a premarital agreement shall be upon the party alleging the agreement to be unenforceable. A premarital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and convincing evidence, that:
a. The party executed the agreement involuntarily; or
b. The agreement was unconscionable at the time enforcement was sought; or
c. That party, before execution of the agreement:
(1) Was not provided full and fair disclosure of the earnings, property and
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;
(3) Did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party;
or
(4) Did not consult with independent legal counsel and did not voluntarily
and expressly waive, in writing, the opportunity to consult with
independent legal counsel.
d. The issue of unconscionability of a premarital agreement shall be determined by the court as a matter of law
37:2-39. Enforcement of premarital agreement; marriage determined void If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
37:2-40. Construction of article: This article shall be construed to effectuate its general purpose to make uniform the law with respect to the subject of the article among states enacting the "Uniform Premarital Agreement Act."
37:2-41. Application of article: This article shall apply to premarital agreements executed on and after its effective date.
Why do people get them?: To protect assets/avoid debts; claim that the K shouldn’t be upheld is usually that it would be ‘unconscionable’ in other words one party wouldn’t be able to support themselves after wards; what you can put into the K = pretty much anything; can’t agree who gets custody of the kids after; can’t agree to no alimony; can’t agree to how much parenting time each will get; best interest of the child is all that matters; there used to be a presumption that any child under the age of 7 was best left with the mother – was known as the Tender Years Doctrine; has been abandoned now – we have no gender preference; whoever is best with the kid gets it; can be revoked later on but must be done formally (as formally as the prenupt was originally filed); basis for setting aside a prenupt (see also 37:2-38 (c) (1-4))