Family Law Commons^™

Enforcement Of Money Judgments And Divorce Decrees In Maine, S. Peter Mills

Maine Law Review

Until recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court's discretion, there was no requirement either in statute or in common law that the court …

The Federal Income Tax Consequences Of Property Settlements In Common Law States And Under The Uniform Marriage And Divorce Act: A Proposal, Maine Law Review

Maine Law Review

Generally, during marriage, most of the property of husband and wife is held in the husband's name. Then, if there should be a divorce, the husband often finds himself required to transfer some of this property to his wife as a "property settlement." If the transferred property has appreciated in value while held by the husband, this appreciation may be treated as taxable income to the husband. Whether the appreciation is so treated depends on the marital property law of the taxpayer's domicile. In the United States, two different systems of marital property law have developed. Most states have evolved …

A Statutory Proposal To Remove Divorce From The Courtroom, Stephen R. Feldman

Maine Law Review

Over the past decade the divorce rate in the United States has more than doubled. Although the reasons suggested for this rapid rise are varied, the resultant impact on the judicial system is clear: divorce cases greatly overburden the courts. Presently they account for about one half of all civil cases filed. Unlike most other civil suits of which nearly half are dismissed or settled, divorce requires a court decree for relief unless the parties reconcile and abandon their suits. In addition to the actual granting of the divorce decree, court time is needed for pre-divorce motions for temporary support …

The Maine Marital Property Act: The Duties Of Divorce Courts And The Right To An Equitable Share Of Marital Assets, Maine Law Review

Maine Law Review

In 1971, the Maine Legislature enacted a statute entitled An Act Relating to Division of Real and Personal Property by the Court under a Decree of Divorce. In adopting section 722-A, the Maine Legislature replaced inequitable divorce laws with provisions patterned after section 307 of the Uniform Marriage and Divorce Act (UM & DA). Under the previous Maine statutory scheme, status of title and notions of fault governed the distribution of property at divorce. Relying upon equitable principles drawn from partnership law and community property doctrines, section 307 of the Uniform Act, and section 722-A of the Maine Act, place …

The Restatement Of Children And The Law: Modern Regulation In A Developmental Framework, Elizabeth S. Scott

Faculty Scholarship

In May 2024, the membership of the American Law Institute approved the Restatement of Children and the Law, the first Restatement to focus on the law regulating children and families. The combined efforts of five Reporters (Elizabeth Scott, Reporter, and Richard Bonnie, Emily Buss, Clare Huntington and Solangel Maldonado, Associate Reporters), working for almost nine years, this new Restatement covers most of the legal landscape of American law's relationship to children. It is organized in four Parts: Part I, Children in Families, deals with parental rights and authority and state intervention in families; Part II, Children in Schools, covers children's …

A Rule 54(B) Dilemma: Divorces Lacking "Finality" Due To Undismissed Counterclaims, Ellen Kandoian

Maine Law Review

Recent decisions of the Maine Law Court bring into sharp focus certain difficulties inherent in applying rules of civil procedure developed in the context of federal practice to a state law setting. In such instances, the rules must operate on certain types of litigation peculiar to state law, notably the entire field of domestic relations. In a field bearing the unique features and demands of domestic relations, it is not surprising that federally patterned rules raised problems not anticipated by their drafters. In the 1981 case of Parent v. Parent, the Maine Law Court, in customary observance of Rule 54(b) …

Glassie V. Doucette, 316 A.3d 1152 (R.I. 2024), Christopher M. Ray

Roger Williams University Law Review

No abstract provided.

The Impact Of Divorce Proceedings On Victims Of Domestic Violence, Quinn G. Di Ienno

Honors Undergraduate Theses

Divorce often signifies the end of conflict in relationships that individuals no longer wish to continue. However, the impact of divorce on victims of intimate partner violence (IPV) is a topic that remains underexplored. This research investigates the extent to which individuals navigating divorce proceedings are victims of IPV and aims to illuminate their experiences within the legal system. The study delves into various forms of abuse, including physical, emotional, and financial, while also addressing the challenges victims face in seeking assistance. Employing a mixed-methods research design, this study comprises a comprehensive literature review and an online survey targeting those …

Compensation For Financing A Spouse's Education: The Means Of Economic Justice In Maine, William S. Kany

Maine Law Review

In cases of marriage dissolution courts attempt to promote economic justice by utilizing their equitable powers and interpreting applicable statutes. It is often difficult, however, to achieve a just result in cases in which one spouse supported the other who attended college and/or professional school during the marriage. In the typical case divorce occurs just prior to or after completion of the education, at a time when the couple has accumulated very few marital assets because all of the marital income has gone into living and educational expenses. Because the only significant asset acquired during the marriage is the degree, …

He Got The Car, She Got The . . . Future Kids? The Necessity Of Contemporaneous Consent In Certain Embryo Custody Disputes, Taryn Bewley

Arkansas Law Notes

New reproductive technology has created new questions that lawmakers must answer. Do surrogates have a right to the babies they deliver? Is it right to genetically select your future children? Should people be allowed to continually make embryos until they make an embryo of a girl—as Paris Hilton has done through seven rounds of IVF? Will legal analysis be changed by the possibility of making an embryo with genetic material from two members of the same sex? Yet, perhaps the most basic question has yet to truly be answered: if an embryo’s creators cannot come to an agreement, who gets …

Not Your Mother’S Marriage: Utilizing Intergenerational Trauma-Informed Divorce Mediation To Discourage Unhealthy Relational Cycles In Children Of Divorce, Abigail Davis

Pepperdine Dispute Resolution Law Journal

This article discusses how divorce mediators can discourage cycles of broken relationships and reduce a child’s likelihood of experiencing intergenerational trauma as a result of the dissolution of their parents’ marriage. Divorce mediators must become knowledgeable about the impact of intergenerational trauma and the most favorable mediation outcomes for the wellbeing of the children involved. This includes encouraging families into an optimal settlement, referring parties to important resources for proactive parenting, making necessary mental health referrals, and enhancing the lives of children experiencing divorce. A mediator well-equipped with a strong referral system and cross-disciplinary knowledge of social, emotional, and behavioral …

Adultery Provisions In Matrimonial Agreements, Elizabeth R. Carter

American University Law Review

Can a contract discourage your spouse from cheating or compensate you for a broken heart? Adultery penalties in marriage contracts seek to do exactly that. An adultery penalty is a financial penalty in a marriage contract triggered by a spouse’s infidelity. While many practitioners advise clients against adultery provisions in marriage contracts, some clients demand them. However, are adultery provisions enforceable? Should they be? This Article considers the sociolegal history of adultery and provides new insight into the enforceability and wisdom of adultery penalties. This Article also provides novel arguments that adultery provisions should not be enforced and calls upon …

The Act For Collaborative Law, Sun Kim

Lewis & Clark Law Review

Collaborative law is an alternative dispute resolution method that helps families across the world divorce cooperatively and amicably, but it faces critiques for its unique practices, such as automatic, mandatory disqualification of attorneys for failure to reach settlement agreements. To withstand critiques and remain a successful alternative dispute resolution method, collaborative law should be codified. Hence, all states should adopt the Uniform Collaborative Law Act (UCLA). The UCLA demystifies the practice of collaborative law and establishes a reliable framework that sets critiques of collaborative law to rest. This Comment explains the key provisions of the UCLA and discusses how the …

The Intersection Of Special Education And Family Law: Thoughts For Family Law Attorneys In Divorce And Custody Cases, Richard D. Marsico

Articles & Chapters

The Individuals with Disabilities Education Act (IDEA) requires participating states to provide a free appropriate public education (FAPE) to children with disabilities. The IDEA gives parents of children with disabilities significant rights and major responsibilities in developing and maintaining their child’s education. Getting the most out of the IDEA for their children requires parents to commit substantial time and financial resources that are difficult to provide in the best circumstances. When parents are having marital difficulties, separated, undergoing a divorce, or negotiating child custody, these difficulties can be exacerbated as parents navigate the intersection of the federal IDEA and state …

A Game Theory View Of Family Law: Planning For A 500% Family Tax, Steven J. Willis

FIU Law Review

Divorces involve money, which can prompt fierce legal battles. These include family obligations for child support, alimony, and property division. Small income changes can have huge consequences. For example, a $1,000 income increase can result in $5,000 of increased family obligations. A $10,000 increase can produce $50,000 of obligations. Or a $10,000 decrease can result in $50,000 of reduced obligations.

Mezini V. Mezini, 268 A.3d 1171 (R.I. 2022), Maya Maldonado-Weinstein

Roger Williams University Law Review

No abstract provided.

A Game Theory View Of Family Law: Divorce Planning For A 500% "Family-Tax", Steven J. Willis

UF Law Faculty Publications

Divorces involve money, which can prompt fierce legal battles. These include family obligations for child support, alimony, and property division. Small income changes can have huge consequences. For example, a $1,000 income increase can result in $5,000 of increased family obligations. A $10,000 increase can produce $50,000 of obligations. Or a $10,000 decrease can result in $50,000 of reduced obligations.

The Dischargeability Of Money Judgements Versus Property Interests In Arbitration Awards For Domestic Contributions In The Context Of Unmarried Couples, Gabriella Hansen

Bankruptcy Research Library

(Excerpt)

A debt which arises prior to the filing of the petition for discharge in bankruptcy is dischargeable unless it can be categorized as one of the statutory exceptions to discharge listed in section 523(a) of title 11 of the United States Code (the “Bankruptcy Code”). Section 523(a)(5) of the Bankruptcy Code prohibits the discharge of awards of domestic support due to a debtor’s spouse, former spouse, or child. Accordingly, maintenance, alimony, and child support, often awarded in divorce proceedings, fall under the federal bankruptcy law statutory exceptions to discharge for domestic support obligations.

When an unmarried couple separates and …

Mut’Ah Divorce: Its Concepts And Its Provisions: A Comparative Study Between Islamic Jurisprudence (Fiqh) And Omani Law, Dr. Rashid Bin Hamoud Naziri

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The study discusses the money paid to the divorcee woman (Mut’ah) as a result of the divorce. Many Muslim scholars have different views towards the provisions and details of this due payment to the divorcee. Further, the Omani Personal Statue law has an opinion for its provisions. As a result, this study is conducted to set the base for this opinion, explain its view, intentions and goals that law bore in its’ inactions.

This study has two approaches; the first one is classified into two sub-quests. The first sub-quest discusses the linguistic definition of (Mut’ah), while the other one discusses …

Divorcing Guns: How Family Law Could Change Parental Gun Ownership And Save Kids’ Lives, Marcia A. Zug

Washington and Lee Law Review Online

Guns are deadly. They are especially deadly for children yet, currently, parental gun ownership is not a major factor in custody disputes. This needs to change. Making irresponsible gun ownership a routine factor in custody cases could transform parental gun behavior. In other contexts, the potential loss of custody has proven to be an extremely strong deterrent. Moreover, unlike other proposed solutions to gun fatalities, this is a change that can be made right now. Making guns a part of custody disputes does not require the enactment of new legislation or even a judicial determination. By simply raising the issue …

Parental Alienation In Family Court: Attacking Expert Testimony, John E.B. Myers, Jean Mercer

Child and Family Law Journal

In child custody litigation, when a parent raises the possibility of child abuse, the accused parent may respond that the parent wo has raised the possibility of abuse is alienating the child in an effort to gain an unfair advantage in court. The parent accused of abuse may offer expert testimony on parental alienation. A voluminous and contentious social science literature exists on parental alienation. Family law attorneys often lack ready access to social science literature. The purpose of this article is to give family law attorneys information from the parental alienation literature that can be used to cross-examine experts …

Hopefully Enduring: How North Carolina’S Divorce Laws Violate The First Amendment, Maren H. Lowrey

Child and Family Law Journal

The phrase “til death do us part” is both poetic and aspirational. It is the ubiquitous vow Americans make to one another when they marry[1] and embark on what is “hopefully enduring.”[2] But life does not always meet the aspirational marks we set and that is most true in the context of marriage and divorce. Each state enjoys nearly exclusive control over this intimate relationship, which results in different regulatory schemes across the United States.[3] Changes in Supreme Court jurisprudence over time ensured state regulation of marriage did not run afoul of the Constitution.[4] These decisions …

The Impact Of Social Security Of Dependents And Financing Of Post-Secondary Education Of Dependents On Support Obligations In Particularly California Divorces After The Tax Cuts And Jobs Act Of 2017, John R. Dorocak

Marquette Benefits and Social Welfare Law Review

The 2017 Tax Cuts and Jobs Act made alimony in divorce decrees and separation agreements entered into after December 31, 2018, neither deductible by the payor nor income to the payee for federal income tax purposes. Likely, that change in the tax law will result in less income to payees in a divorce and higher taxes for payors. In California, support in divorces is basically calculated by the software program Dissomaster. With payors facing higher taxes, such payors may look for possible sources of additional income for paying support. Payors may receive a credit in California against the support obligation …

Achieving Equality Without A Constitution: Lessons From Israel For Queer Family Law, Laura T. Kessler

Utah Law Faculty Scholarship

How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context …

Mut’Ah Divorce: Its Concepts And Its Provisions: A Comparative Study Between Islamic Jurisprudence (Fiqh) And Omani Law, Dr. Rashid Bin Hamoud Naziri

UAEU Law Journal

The study discusses the money paid to the divorcee woman (Mut’ah) as a result of the divorce. Many Muslim scholars have different views towards the provisions and details of this due payment to the divorcee. Further, the Omani Personal Statue law has an opinion for its provisions. As a result, this study is conducted to set the base for this opinion, explain its view, intentions and goals that law bore in its’ inactions.

This study has two approaches; the first one is classified into two sub-quests. The first sub-quest discusses the linguistic definition of (Mut’ah), while the other one discusses …

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …

Divorcing Partners And Fighting Siblings: Using The Collaborative Law Model To Resolve Disputes In Family Businesses, Hayley R. Goodman

University of Miami Business Law Review

This paper focuses on the ways that collaborative law can be used to resolve family business disputes. Such disputes can get ugly and leave families and businesses in shambles after years of fighting and even litigation. Such disputes can involve those between divorcing partners, parents and children, extended family members, and new and ex partners. Sometimes, these disputes cannot be resolved, forcing family members to sell all or part of the company. Moreover, when families try to resolve disputes through litigation, they end up spending a lot of money. Mediation is often used to resolve disputes in the family business …

Appraising Problems, Not Stuff, Chad J. Pomeroy

St. Mary's Law Journal

Abstract forthcoming.

Child Support And Joint Physical Custody, Raymond C. O'Brien

Catholic University Law Review

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

Articles

We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …