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Amanda Weiner

1/24/11

Family Law: TWEN Assignment

1. Please list and briefly define the defenses to fault-based divorce.1)

Recrimination: notion of unclean hands:both parties are guilty sothey cant get divorced; prevents one spouse from obtaining a divorceon fault grounds when he/she is also guilty of some kind of marital

fault

2) Connivance: accuser has assisted in the act about which they arecomplaining; the setting up of a situation so that the other person

commits a wrongdoing. (example: a wife inviting husbands mistress

to the house and then leaving for the night). If the wife sues her

husband for divorce, claiming he has committed adultery, the husbandmay argue as a defense that she connived -- that is, set up -- his actions

3) Condonation: a spouses approval (byforgiving/condoning/supporting) of another's activities. For example, awife who does not object to her husband's adultery may be said to

condone it. If the wife sues her husband for divorce, claiming he has

committed adultery, the husband may argue as a defense that she

condoned his behavior.4) Collusion: agreement by the parties to the terms of the divorce

(example: If the only no fault divorce available in a state requires that

the couple separate for a long time and the couple doesn't want to wait,they might pretend that one of them was at fault in order to

manufacture a ground for divorce) The parties are cooperating in order

to mislead the judge. If, before the divorce, one spouse no longer

wants a divorce, he could raise the collusion as a defense5) Insanity: this defense prevents one spouse from obtaining a divorce on

fault groundssuch as crueltywhen the other spouse was insane at

the time of the acts in question.6) Abandonment: can sometimes be a defense (or a counterclaim)

2. Some defenses are no longer good law &/or have been modified by most states.Please identify those that are either no longer good law or that have been

modified, explaining why the change has occurred (this is usually based on a

policy consideration). Some of this information may be discussed in casebook

notes that were not part of your assigned reading.1) Recrimination: has been expressly limited or abolished by statute in 17

states. Other states have limited the concept by 1) granting a divorce to

both spouses; 2) requiring that recrimination must be pleaded by a

party rather than raised by the court; and 3) adopting the doctrine ofcomparative rectitude (determining which party was least at fault,

granting a divorce and adjusting their rights)

2) Condonation: courts have differed much as to what is required toestablished condonation because of the tension between condonation

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and reconciliation. In Glass v. Glass, a 1938 case, condonation is held

not to bear so strictly with respect to women. This test in Glasscould

probably be successfully challenged as an unconstitutional gender-based standard.

3) Insanity: In 1847, inMatchin v. Matchin, a Pennsylvania court helpthat insanity was not a defense to divorce on adultery ground.However, in 1960 inManley v. Manley, the court declined to followtheMatchinrule because it is unreasonable and unjust by all known

standards, and has been examined and universally rejected by legal

authorities and courts in other jurisdictions.

3. Most states have codified the states bases for divorce, especially for no-faultstatutes. A state's no-fault statute, however, usually does not come with the label

no fault. How do you know whether a statute is no fault? What componentswill typically be included in no-fault legislation?

As of November 2004, 14 states had statutes allowing only for no-fault

divorce, with fault-based divorce unavailable. 33 states had divorce statutes thatpermitted spouses to seek divorce on either fault or no-fault grounds. 3 statesNew

York, Mississippi, and Tennesseehave mixed fault and no-fault divorce regimes,

but with one key difference. In those 3 states, the no-fault provisions contain a

requirement of mutual consent. By requiring both parties to sign the agreement,spouses are essentially forced to resolve all issues between them. In marriages where

one spouse wants out of the marriage and the other does not, mutual agreement can

stand as a substantial barrier to divorce where no fault ground exists.Certain components will typically be included in no-fault legislation, which

can help in distinguishing a no-fault statute. No fault provisions typically allow for

dissolution of marriage under the notions of incompatibility, irreconcilable

differences, and irremediable/irretrievable breakdown of the marriage.

4. No-fault statutes are often described as permitting unilateral divorce: why?No-fault statutes are often describes as permitting unilateral divorce

because they allow either spouse to end the marriage without any agreement or

fault by the other. Sometimes, for example, this results in a spouse with no or

little money to have no choice/options simply because they have hardly anybargaining power.

5. Waiting periods &/or requirements that the couple live separate and apart varywidely among the states, typically ranging from 6 weeks to 1.5 years. Within thatrange, what amount of time, if any, do you, personally, think is appropriate?

Explain your reasoning.

The requirement that the couple live separate and apart incorporates a

mandatory time period that varies among the states. Personally, I think it is easy tofind a number of cases that provide good reason as to why 6 weeks may be too short

of a time period, and 1.5 years too long. I base my reasoning in part on how long the

marriage may have been prior to separation. For example, if a couple decides toseparate after 25+ years of marriage and the requirement is to live separate and apart

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for only 6 weeks, the time period does not seem long enough (and vice versa). 6

weeks in comparison to 25 years seems to be too short of a time period for spouses to

physically separate from one another and assess whether or not they feel this decisionis in their best interests. Furthermore, 1.5 years may be too long of a time period. For

couples that may have only been married for a short period of time, for example,

requiring that spouses live separate and apart for 1.5 years may even be longer thanthe period of time that they were married! Additionally, if spouses are certain thatdivorce is the best solution, 1.5 years seems too long of a period of time to have live

separate and apart before they can obtain a divorce. I feel that some middle ground is

an appropriate time period, perhaps 8-10 months. In my opinion, this period of timeseems reasonable for all couples, no matter how long they have been married. This

time period is also reasonable, for the spouses have time to live apart from one

another and truly spend time thinking about whether this is the best decision for them.

6. In Carney, does the CA S. Ct. rule that a parent's disability is an illegitimateconsideration in determining custody? If yes, explain the court's reasoning; if no,

describe the court's holding & rationale.

In Carney, the California Supreme Court does not rule that a parents

disability is an illegitimate consideration in determining custody. The Court stated

that it is impermissible for courts to simply rely on a parents disability/condition asprima facie evidence of the persons unfitness as a parent or of probable detriment to

the child. The Court continued on to say that in all cases of this sort, the court must

view the handicapped person as an individual and the family as a whole. This may bedone by inquiring into the persons actual and potential physical capabilities, learn

how he/she has adapted to the disability and manages its problems, consider how the

other members of the household have adjusted thereto, and take into account the

special contributions the person may make to the family despite, or even because of,the handicap. These and other relevant factors should be weight together and then the

court should determine whether the parents condition will in fact have a substantial

and lasting adverse effect on the best interests of the child (p. 529-539).In this particular case, however, the court ruled that Williams (the father)

disability was not sufficient by itself to create a persuasive showing of changed

circumstances that affected the child. To justify ordering a change in custody, thechanged circumstances must be substantial; the material facts and circumstances

occurring subsequently are of a kind to render it essential or expedient for the welfare

of the child that there be a change. (p. 526). Here, the fathers disability was not

enough to justify an order for change of custody. The father was still capable of beinga good parent/taking care of his child and maintaining a normal parent/child

relationship. The Court concluded that a physical handicap that affects a parents

ability to participate with his children in purely physical activities is not a changed

circumstance of sufficient relevance and materiality to render it either essential orexpedient for their welfare that they be taken from his custody. (p.532).

7. Please list approximately 5-10 factors commonly considered in determiningcustody. (You may find these in the casebook or through an online search). In

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bold, please indicate those that you, personally, believe to be the most important.

This hypothetical requires you to choose: it depends on the circumstances, or

all of them should be weighted equally, are not acceptable answers for thepurposes of this question.

1) Age, health and sex of the child2)

Determination of the parent that had the continuity of care prior to theseparation

3) Which parent has the best parenting skills and which has thewillingness and capacity to provide primary child care

4) The employment of the parent and responsibilities of that employment5) Physical and mental health and age of the parents6) Emotional ties of parent and child7) Moral fitness of parents8) The home, school, and community record of the child9) The preference of the child at the age sufficient to express a

preference by law

10)Stability of home environment and employment of each parent