1. Property Ownership
Separate property: property owned by each spouse before the marriage or individually awarded gifts and inheritances.
Marital property: property gained during the marriage.
Community property v. equitable distribution. What is the difference in the systems?
Problem 31.6

2. The case of the Family Business
George has owned a restaurant since inheriting from his father at 20 yo. George is 30 and is going to marry Gigi. The restaurant is doing ok, grossing about $550,000 per year.
Gigi helps manage the restaurant after the marriage. Her creative menu planning and work with a new chef she found helps cause business to boom. In 2 years, the business is grossing $1 million per year.
After 10 years of marriage, George wants a divorce.
Is the restaurant separate property? What are the options for dividing the property?

3. Prenuptial Agreements
The attempt to decide how property will be divided in the event of divorce before entering into marriage.
Think of a celebrity, now think of a potential spouse for that celebrity.
Make a list of 15 items they probably each own.
What should be marital and separate?
31.7

4. What can make a prenup invalid?
Duress: you have 24 hours to sign the day before the wedding.
Unconscionable: The husband is not represented but the bride has an attorney who drafted the prenup.
You may not limit children’s rights or decide custody in a prenup – separate pocess.
Sunset clause: after something happens your inheritance increases, ex. Birth of a child.

5. Privileged communication
Problem 31.7

6. Violence Against Women Act
Passed in 1994 with help from then Senator Biden
Creates many new requirements for rape investigation and prosecution and domestic violence protection.
Examples include no cost rape kits for victims, increased funding for hotlines and police protection.
Women who gained citizenship in marriage may no longer be deported for divorcing due to domestic violence.

7. Orders for Protection
May be civil or criminal. Criminal filed by State’s Attorney.
Essentially a “no contact with me” order from the court.
No fee to file a Petition for an OFP.
May be filed separately or as part of a divorce proceeding.
Children may be included or visitation may be required.
Penalties for violating can be misdemeanor or felony depending on the nature.

8. Draft a Petition for an OFP
Provide a list of questions you might have for your client.
What advice do you have?
Draft the Petition. We will discuss summons and cover sheets in class that accompany the Petition.

9. Marriage Problems 
Married couples may encounter difficulties as a result of numerous social, economic, & personal factors
Conflicts w/in-laws or relatives
Job & career pressures
Adultery
Conflicts about children
Breakdowns in communication
Alcohol/drug abuse
Money problems
Loss of shared goals or interests

10. When couples are unable to resolve problems on their own, they may seek help from outside sources, such as friends, family, or clergy
Major differences may require the couple to seek the help of a marriage counselor, psychologist, or social worker
A marriage counselor can help them explore the reasons for their problems &, ideally, work out a solution

11. Separation and Divorce
Some couples are unable to resolve their differences & choose to either separate or divorce
When a couple separates, they remain married but live apart; short or long time; still legally married
A divorce is a court order that legally ends a valid marriage; once a divorce is final, each partner may legally remarry
Legally, parties may pursue other relationships while still married but may not remarry

12. In fact, state laws play a great role as to how & under what grounds a couple can obtain a divorce
Although divorce legally ends a marriage, the two parties might still be responsible to each other financially, especially if children are involved
Choose your future spouse carefully because the commitment may last a lifetime

13. Separation
Due to the many financial, legal, & emotional hardships that come with a divorce, most states require that couples seeking this option enter a period of separation
During this time, both spouses have time to consider the consequences of ending the marriage & to get their affairs in order so that they can go on w/their separate lives
Also helpful to couples that have kids

14. Some couples won’t consider divorce for religious or other reasons
Sometimes the couple needs time apart to consider the future
A separation rather than a divorce may be the best option

15. A separation agreement is a written document that sets out the couple’s agreed-upon terms for child custody & visitation, child & spousal support, division of property, etc.
Often the result of mediation – who makes a good mediator?
Can say anything both parties want it to say
Does not have to be approved by the court although can be (can only be altered by court or if both couples agree)
If signed by both, it is a legally enforceable contract; if not followed, 1 party can take the other to court
Usually forms the basis for the final divorce decree (court order)

16. Divorce > 1 million couples are divorced each year in U.S.
About ½ of all marriages end in divorce
The process by which a couple legally ends their marriage & divides their property
Legal relationship is not ended
May be continuing financial obligations, & if there are children, continuing rights & responsibilities that the parents must share
DO 34.1

17. Ending a marriage can be expensive
Legal fees (or Pro se (do-it-yourself kits); classes; Internet), alimony, child support payments, cost of maintaining 2 households
Emotional cost on family, friends, work
Long-term effect on life & kid’s lives
Because of the difficulties that arise, mediation is often recommended or required (in Cook County) – the presence of a neutral 3rd party to assist couples in identifying, confronting, & solving problems before divorce goes forward.
Lawyers are present for mediation.

18. Typical grounds – Guesses?
At one time, most states allowed divorce only if 1 spouse could show that the other spouse had done something wrong or was at fault
Typical grounds – Guesses?
Adultery – sexual intercourse bet. a married person & someone other than his/her spouse
Desertion – leaving one’s spouse w/no intention of returning
Mental cruelty – acts of emotional abuse against one’s spouse
Physical cruelty – acts of violence or physical abuse against one’s spouse
Insanity – mental illness

19. Proving that 1 spouse was at fault was difficult
Divorce used to cause great embarrassment
A finding that 1 spouse was at fault would prevent him/her from receiving any support after the marriage ended
DEBATE: What is better fault or no-fault??
Is it good that obtaining a divorce has become easier?

20. Most states now have a no-fault divorce system
A spouse doesn’t have to prove that the other spouse did something wrong
Instead, the husband or wife has to show only that there are irreconcilable differences
This means that the marriage has completely broken down & is beyond repair
Many states also allow divorce when a couple can show that they voluntarily lived apart for a certain period of time, whether or not it was a formal period of separation
Some people say it is too easy to get a divorce now  high divorce rates; thus, some states have lengthened the time it takes to get a no-fault divorce

21. In 1997, Louisiana passed a law enabling couples who are planning to marry to choose a covenant marriage instead of obtaining a regular license to marry
Couples choosing a covenant marriage agree in advance (in writing) to make no-fault divorce more difficult to obtain
Under traditional marriage laws, a couple must separate for 6 months before getting a no-fault divorce
To end a covenant marriage by no-fault divorce, the couple must separate & live apart for 2 years

22. Covenant marriages try to encourage lifelong commitments by both partners, thereby aiming to reduce the divorce rate, by limiting access to relatively easy divorces
Couples who are already married also have the option to convert their existing marriage to a covenant marriage

23. Child Custody  
Once a divorce is final, parents must decide who will have legal responsibility for the children—this is called custody
The parent who gains custody becomes the primary provider & guardian, while the other parent, the noncustodial parent, is granted visitation rights & may be responsible for some financial support
Joint Legal Custody is the presumption. Primary physical custody usually awarded to one parent.
For obvious reasons, custody is very important

24. Joint custody is defined as:
Both parents have full responsibility for the child’s supervision; both have an equal say in important issues, such as schooling & religion; child may live part-time w/each parent; most courts are unwilling to approve a joint custody request unless the parents can demonstrate an ability to work well together

25. Tender Years Doctrine - Traditionally the courts presumed that young children were better off w/their mothers
Today, most courts have laws that require courts to treat men & women equally in custody disputes
In reality, some judges still favor the mother, especially if the child is young or the mother works less.

26. If a couple is unable to agree on a custody decision, the court awards custody based on the best interests of the children
Courts look at factors such as:
Youth’s actions in the home, school, & community
Emotional & economic stability of the parents
Which parent has stronger bonds w/the child
Which parent has been the primary care giver
Courts also consider the child’s desires – especially as they get older (12)
Courts also can assign a social services agency to study the parents & child(ren)
PROBLEM 34.3

27. Many states have passed laws that allow grandparents to petition for visitation rights if the child’s parents will not voluntarily grant visitation to them
Challenges to these laws brought by parents have been upheld in many states

28. Some custody disputes are so bitter, that 1 parent takes the children from the other parent & hides them
This may involve moving to another state; or they may move constantly to avoid being found
The Federal Parental Kidnapping Act of 1980 prevents parents who abduct their children from getting new custody orders in a different state
It also provides resources to help custodial parents locate their missing children

29. The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) has now been passed in all 50 states
A custody decree entered in 1 state is valid in all states
A parent w/o custody can’t remove his/her kids from their home state & attempt to obtain a different custody order in another state
Most states have statutes that make parental kidnapping—taking or hiding a child from a parent who has custody—a crime

30. Alimony, Property Division, and Child Support
The distribution of money & possessions is a highly debated topic during a divorce—who gets the car and the house?
This type of decision is called property division
The final divorce decree will also involve an agreement about support to one of the spouses—alimony—as well as child support
Remember community property v. equitable distribution
PROBLEM 34.4 and 34.5