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WEEK 11

Monday, December 6
PAGES: 1076-1108
CASES: Claire J. Glickman v. Hilda P. Collins; Helen S. Cohen v. Charles J. Cronin; George B. Martin, Jr. v. Sandra A. Martin; Marriage of David C. and Masako Moore; Marriage of Debra D. and Donald D. Brockman

    ELKIND: Under URESA, the law of the state in which the obligor lives governs, though California law premitted the obligee to choose New York Law. See Friday, December 3.

    Rudoplh, Elkind illustrate the problem with URESA (which was replaced by UIFSA) which permitted the existance of more than one support order at one time. Elkind also illustrates the problem with non-modifiable child support, an idea that has since been rescinded in Georgia since the controversy at issue.

    In Washingtington, R.C.W. 26.21.580 para. 3 governs: A tribunal may not modify a child support order that is not modifiable in the state in which it is issued in an attempt to have just one order out there. My question about this rule is that child support obligations are now modifiable in every state.

    HAAG: Mother has no right to bring modification of child support action against the father in New York where she had previously signed an agreement stipulating that illinois law would govern the child support agreement and where the enforcement of the agreement is not an affront to the public policy of New York and where the parties have the most contacts with Illinois.

    In this case, the mother could have the child sue in the child's name as the next step in this litigation.

    REVIEW OF PART V:

      1837-1901: Reign of Queen Victoria
      1839: First English custody statute giving the chancellor the discretion to give custody, visitation to the non-adulterous wife until the child reached the age of 7.
      1858: Statute permitting absolute judicial divorce passed in the Parliment in England.
      1883: First Married Women's Property Act passed in England

    IN RE MARRIAGE OF MADSEN: A premarital agreement is valid if fair and reasonable. Even if not fair and reasonable, it is still valid if it was made with full disclosure and entered into freely and voluntarily by the parties. The agreement was overturned in Madsen, where the agreement was presented and signed on the day of the wedding, where the wife had no attorney present, where the wife was confused about whether her husband's lawyer, who represented her in her divorce in order to marry her second husband, was representing her as well, where the lawyer advised her of her right to counsel but did not advise her to get counsel and where the wife was not told and did not understand that she was signing away her right to claim community property. Division I said the agreement must be both procedurally and substantively fair in order to be upheld. Madsen was a prominent member of the Washington Legislature from Yakima, she was a staffer in Olympia; the lawyer in this case, Brachtenbach, later became a justice on the Washington Supreme Court and recused himself when this case reached the court. His colleagues did not chastise him from the bench (as they might have had he been some anonymous lawyer acting badly).

    GLENDON ARTICLE: People should be able to contract where no children are involved, but the state interests as parens patriae should predominate where children are present.

    DAWLEY: Antenuptial agreement was not procured by undue influence where the parties had equal bargaining power (she his desire to avoid a public paternity suit which would have jeopardized his career, he her need of support for her daughter and fear of losing her job) and where each secured their separate property and where the husband agreed to support his wife's daughter from a previous relationship with another man.

    Essentially, you can contract around community property, at least in California in 1976.

    OSBORNE:

    1. An antenuptial contract settling the alimony or property rights of the parties upon divorce is not per se against public policy in Massachusetts and may be specifically enforced.
    2. In order to be enforceable, the antenuptial agreement amde after the effective date of Rosenberg v. Lipnick must have been preceded by fair disclosure.
    3. Antenuptial agreements that settle alimony and property rights of the parties in the event of divorce should be binding on the courts to the same extent as post-nuptial separation agreements.
    4. Antenuptial agreement may be modified by a court where it is determined one spouse is or will become a public charge or where a provision affecting the right of custody of a minor child is not in the best interests of the child.

    DELOREAN: Three requirements for enforcement of antenuptial agreements:

    1. No fraud or duress in execution.
    2. Must not be unconscionable.
    3. Spouse seeking to have the agreement enforced bears the burden of proving that a full disclosure of his financial wealth was made before the agreement was signed.

    Choice of law governing a dispute arising from antenuptial agreements should be determined by the intent of the parties or, absent agreement, by the law of the place of contracting or by the law of the place with which the parties had substantial contacts.

    Antenuptial agreement should be enforced where the decision of an arbitrator to which the parties agreed and to which they agreed to be bound deems it valid and enforceable.

    HELD: Antenuptial agreement in which wife relinquished community property interests in husband's $20 million estate was enforceable under Calfornia law where she was given competent legal advice and had time to consider the consequences of signing the agreemen before she signed it, where she had some business experience and knew firsthand of the problems wrought by divorce, where the agreement would not leave her destitute following divorce, where the party seeking to enforce the agreement told the other party of the general idea of the character and extent of his financial assets and income even though he made no specific disclosure.


Tuesday, December 7
PAGES: 1108-1119
CASES: Anne C. Bell v. Lowry M. Bell, Jr.; O'Connor Bros. Abalone Co. v. Marlon Brando

    IN RE MORRISON

    FAVROT: Marriage obliges the spouses to fulfill the reasonable sex drives of the other spouse and the parties cannot agree otherwise.

    STREGACK: In Florida probate courts, no disclosure of each spouse's estate shall be required for an agreement, contract, or waiver executed before marriage. In other words, disclosure is required in order for an antenuptial agreement to be valid in terms of assent distribution upon separation but not upon the death of one of the spouses.

    SHIELS: Wife stated evidence sufficient to sustain a challenge to a separation agreement where she alleges that, at the time of her signing, she was debilitated, indigent, nervous, hysterical, her signing was not her free voluntary and responsible act.

    SIMEONE: Full disclosure must be made in order for a prenuptial agreement to be valid. The presumption is that fill disclosure was made where the ageeement says disclosure was made, but the presumption is rebuttable by clear and convincing evidence.

    KNIPPEL'S ESTATE: Law of the jurisdiction of the matrimonial domicile governs disputes arising from agreements arising from the personal property of one spouse, despite that agreement's being signed in another jurisdiction. In this case, the court held that giving up rights upon death is valid in Wisconsin but not in Arizona.

    NORRIS:

    1. Parties to an antenuptial contract may specify the chose of law they wish to govern as long as thee is some reasonable relationship with the jurisdiction specified.
    2. Parties had sufficient contacts with the jurisdiction in which they chose to govern conflicts arising from an antenuptial contract where the agreement was signed in the jurisdiction and where the husband had a second vacation home in the jurisdiction.
    3. Antenuptial contract is invalid as unfair in Florida where no provision is made for the wife, who was worse off after the marriage than she was before, where the husband, who sought to have the agreement upheld, failed to meet the burden of proving that he fully disclosed his income and where she signed the document one hour before the ceremony at her husband's demand.

    LEWIS: Where a contract is made in one state but concerns property in another state, the court should decide which state would have the strongest interest in seeing its laws applied to that particular case in determining which law should govern. In this case, the agreement was signed in New York but concerned property in Hawai'i. Hawai'i, where the wife had lived continuously for six years and where the husband had been a resident since for five years and where the property in question was located in Hawai'i, had the stronger and primary interest in seeing its laws applied to the case because it was most directly affected by the respective financial positions of the husband and wife.

    The general rule is that a court will inquire into the fairness of antenuptial or separation agreements between spouses. Norris is the general rule, Simeone is the odd case.

    TROSSMAN: Parties to an antenuptial agtreement may seek declaratory judgment in the validity of distribution of property provisions on the prior death of a spouse where litigation on the issue is imminent, notwithstanding the fact that both spouses are still living.

    DONNELL:

    1. A contract between parties who are living together is not deemed invalid merely by virture of the fact that their relationship had not been solemnized in a formal marriage.
    2. Trial court erred in holding a contract between two people engaged in a martial-like relationship unenforceable on the ground that it promoted or facilitated divorce where the contract was entered after the divorce final and after the adultery had ceased.
    3. Sexual consideration, if at the heart of an agreement, renders the contract unforceable, but can be servered from the contract of if not at the root of an agreement supported by valid consideration.

    GLICKMAN: Separation agreement not promotive of divorce if entered into where teh marriage had so deteriorated that legitimate grounds for divorce existed and where there was little hope of reconciliation.

    COHEN: Separation agreement in which husband was to pay his wife $400 per month in support payments can be charged against his estate as an exception to the general rule that a husband's obligation to support his wife terminates with the husband's death where he stated his intent to charge the payments against his estate by providing that they should continue to the wife until she dies or remarries, where it was anticipated that the payments would be the wife's sole source of income and where the wife was required, by the terms of the agreement, to provide for the maintenance and upkeep of the marital home.

    In order to bind the estate of one spouse, a separation agreement must either specifically provide for the continuation of payments or evince, from the terms of the ageement read as a whole, a clear intention that support payments continue, notwithstanding the husband's death.

    MARTIN: A separation agreement will be set aside if, and only if, overreaching or unconscionability ("a bargain is such that no man in his senses and not under delusion would make on the one hand and ... no hontes or fair man would accept on the other") is established by the party seeking to deem the contract invalid.

    MOORE:


Wednesday, December 8
PAGES: 1108-1119
CASES: Anne C. Bell v. Lowry M. Bell, Jr.; O'Connor Bros. Abalone Co. v. Marlon Brando

    BROCKMAN:

    BELL:

    ABALONE:

EXAMINATION NOTES

  1. Prediction
    1. "It is ____ percent likely that the court will ..."
    2. Chose one of the following:
      1. 20
      2. 40
      3. 60
      4. 80
    3. Suggestions
      1. Don't waffle.
      2. Don't state conditions or alternative percentages; alternatives go into the explanation to state the degree of likelihood.
      3. Only put the answer at the beginning, or make certain your answers are consistent throughout the exam.
  2. Explanation
    1. Whole purpose is to justify the percentage selected.
    2. Be explicit about how factors are relevant.
    3. Answer should be consistent with the explanation.
    4. Don't change your percentage during the course of the explanation.
  3. Grading
    1. In writing our exams, we paint a picture, Hardisty decides which pictures are more beautiful and which are more ugly.
    2. The system is more intuitive than numerical.
    3. Criteria of beauty
      1. Do you articulate the relevant role of law?
        1. Do traditional legal analysis first.
        2. Articulate what you know.
        3. <
        4. Worse to say things wrong than to get things right.
        5. Don't articulate an irrelevant rule.
      2. Apply the rule to the facts explicitly.
      3. Be explicit in the conclusion.
      4. Demonstrate syllogistic reasoning skills (major premise, minor premise, conclusion).
      5. Hardisty particularly likes logic and particularly dislikes illogic.
      6. Supplement the traditional analysis with non-doctrinal factors.
        1. Typically, you must have some analysis of non-doctrinal factors.
        2. Be explicit about labeling non-doctrinal factors as such.
      7. Argue both sides.
        1. Most people do.
        2. This is an important lawyer skill.
        3. To justify the percentage you chose, you must argue both sides.
        4. Be oriented to procedural issues.
        5. Be oriented to the era and its role in the decision.
        6. Address standard of review where necessary.
        7. Be oriented in space (geographically).
        8. Errors are particularly ugly.
        9. Pithiness counts: be brief and to the point.
        10. Short answers cut down on the chances for making mistakes.
        11. Proofread your writing.
        12. You will have enough time to explain your answer in this exam.
      8. Skills required
        1. Applying the rule to the facts.
        2. Integrating the substantive and the procedural.
        3. Integrating the doctrinal and the non-doctrinal.
        4. Appropriate tone, solid structure.
        5. Show how the law reflects society.
        6. Cite relevant sources of law.
        7. Relate law to its purposes, policies.
        8. Be detailed.

T O P