Professor Jane C. Murphy
Family Law
Spring 2003
Sample Student Family Law Final Exam Answers
Question I:
(1) Bonnie has immediate legal remedies available to her forcing Bart to move out. Bonnie is a current resident of Maryland, therefore, Maryland would have jurisdiction. Bonnie could get a temporary ex parte protection order (Maryland Family Law Code § 4-505), or an interim protection order from the Commissioner (§ 4-504.1). Under § 4-504, Bonnie must file a petition, under oath, including information of the alleged abuse and relief requested. A temporary civil protection order is issued only upon a judge finding reasonable grounds to believe that a person eligible for relief has been abused. § 4-505(a). The judge must find by clear and convincing evidence that the abuse occurred. § 4-506(c). A commissioner may issue an interim order when the Office of the Clerk of the Circuit Court or the Office of the District court Clerk is not open. § 4-501.1.
With both the temporary and the final protective orders, the judge must find that a person eligible for relief (PEFR) has been abused. Pursuant to § 4-501(1), Bonnie is a PEFR as she is Bart's current spouse, Bart's cohabitant , has lived with him for 90 days in the last year, and has two adopted children in common with the respondent. Next, the abuse must be covered under § 4-501(b). The abuse incurred upon Bonnie by Bart the night before is covered under § 4-501(b)(iii), requiring assault in any degree. Bonnie could be given a temporary protective order, as she is a PEFR, and was abused by the respondent.
Pursuant to § 4-505(a)(2)(iii), the temporary protection order could order Bart to refrain from entering the home. Under § 4-501(i), the residence is Bonnie's home as it is her principal residence, and she owns it as a tenants by the entirety with Bart. Section 4-506(e) provides factors the judge must look at in ordering the vacation of a home. Considering these factors, there are three minor children in the home, a five-year relationship, the home is titled as tenants by the entirety, purchased mostly by Bonnie's parents, a history of verbal and physical abuse by Bart, alternative housing may be available, and financial resources may be an issue, as both of their salaries have decreased. Bonnie may have legal remedy available to her to force Bart out of the home if she files a protection order petition.
(2) Although the marital home was purchased in 2000, (which presumably is
located in Maryland), Bonnie and Bart did not move to Maryland from their
former domicile in Philadelphia until March of 2002. Since the grounds for
Bonnie's divorce, which will be considered in more detail below, occurred
in Maryland, the 1 year residency requirement of Md. Code Ann. F.L. §
7-101, a party may not apply for a divorce until one of the parties has resided
in Maryland for at least one year. Nevertheless, it seems that the residency
requirement is satisfied if Bonnie consults with you in May of 2003.
Section 7-103 would govern both any fault and no-fault based grounds under which Bonnie could seek a decree of absolute divorce against Bart. Under Md. Code Ann. F.L. § 7-103(7), Bonnie could possibly file an immediate complaint for absolute divorce without the lapse of any time on the fault based grounds of cruelty and excessively vicious conduct in light of Bart's act of physical abuse. Bonnie would, however, encounter some difficulty in obtaining a divorce on this ground insofar as generally, a single act of abuse is not sufficient to prove cruelty and/or excessively vicious conduct. See Das v. Das, 133 Md. App. 1 (2000). With respect to Bart's verbal abuse, Bonnie would have to demonstrate that such abuse had caused her certain physical symptoms which were endangering her life. More particularly, Bonnie could plausibly argue that Bart's systemic abuse had endangered her mental health and caused her to seek therapy from a psychiatrist.
Since Bart's alcoholism, refusal to obtain treatment, and physical and verbal abuse has become "intolerable" to Bonnie, it is possible that she could look to the fault based ground of constructive desertion. See Md. Code Ann. F.L. § 7-103(a)(2). Since Bart refuses to vacate the marital home, Bonnie may, therefore, be able to apply for an absolute divorce for constructive desertion if she leaves the marital home with the intent of ending her marriage with Bart for the statutory period of one year. Under this theory, however, Bonnie would have to wait for one year until her cause of action against Bart would be ripe and risk the change that Bart would file a counter-complaint for actual desertion.
If Bonnie can separate from Bart for a period of two years without cohabitation or interruption, then, she can obtain a judgment of absolute divorce against Bart irrespective of fault. See Md. Code Ann. F.L. § 7-103(a)(2).
(3) In order to determine Bonnie's rights in the marital property, the rights
of both parties must be examined and there are three steps that do so. The
first step is to identify and classify all property as either marital or non-marital.
Marital property as defined in § 8-201(e) is any property acquired by
either party, however titled, during the course of the marriage including
all property owned by the parties as tenants in the entirety. This term excludes
all property acquired before the marriage, by inheritance or gift, excluded
by prior valid agreement, or directly traceable to any of these sources.
Applying this to the property of Bonnie and Bart: the house is marital property because it is owned by them as tenants in the entirety; Bonnie's bank account and its interest is non-marital property because it is from her aunt's inheritance and has not been added to with any marital funds; the income Bonnie receives from alimony is also not marital property because it is not property per se, and also if it was considered property it was acquired before the marriage so it would be non-marital; Bart's IRA would be considered marital property because it was acquired 100% during the marriage; and finally Bonnie's pension which was started 5 years before the marriage but continued 5 years during the marriage, so 50% of the pension would be marital property. So in sum, the marital home, Bart's IRA and 50% of Bonnie's pension would be considered marital property.
The second step is to value the marital property. In Bonnie's case, the marital home is worth $100K with no debt attached, Bart's IRA is worth $10K, and 50% of Bonnie's pension is $50K. However, the home would have to be sold and the proceeds partitioned because under § 8-202 the court could not take title to real property away from one party and give it to another. Adding these together Bonnie and Bart's total marital estate is worth $160K. The third step is to distribute the marital property. The first thing that is considered when distributing the marital property is what the outcome would be if the court did nothing and the property was distributed according to title. In Bonnie's case, Bonnie would be entitled to $100K and Bart would be entitled to $60K. This would leave a $40K difference.
At this point it appears that Bart could and would ask for a $20K monetary award so both parties would have 50% of the marital estate or $80K. This would be appropriate because the majority of jurisdictions, including Maryland, distribute marital property according to equitable distribution. Any monetary award given by any court shall be determined considering the factors contained in § 8-205. It is these factors where Bonnie could make her argument to receive more of the marital property. The factor that most greatly weighs in favor of Bart receiving a smaller monetary award is the economic circumstances of Bonnie and Bart at the time the award is to be made. At this point in time Bonnie only makes $48K a year, which is $12K less than what Bart makes. This decreased income on top of the child support that Bonnie is already paying, as well as taking care of her and Bart's children would make a monetary award greatly unfair. Another factor that weighs in favor of Bonnie is the fact that it was Bart's abusive behavior that caused the break in the marriage. A final factor that could be considered is the fact that it was Bonnie that supported the family during Bart's struggles to find a lucrative career. Taking these factors into consideration a court could find that the distribution of the marital property would be unfair (exam has "fair") without a monetary award.
(4) This is a decision Bonnie and Bart should work out on their own. Bonnie
should take an objective as possible look at the situation in light of what
is best for the children. There are arguments on both sides as to why Bart
should or should not retain joint legal custody. An argument for joint legal
custody is that the children will be benefited by having their father involved
in making important decisions about their lives and help guide them to adulthood.
Bonnie's mental problems may make parenting all the more difficult. While
the fact of her treatment is positive, the children would benefit from Bart's
participation in decisions. On the other hand, if Bart is "impossible
to deal with" it might be an exercise in futility for Bonnie to consult
with him on all important decisions. However, Bonnie's frustration alone is
not a sufficient reason to deprive Bart of legal custody. Under FL 5-203 it
is presumed that parents have equal rights and responsibilities to their children.
Bart has agreed to give Bonnie sole physical custody; that should not be imputed
to the decision about legal custody. I would ask Bonnie to consider the general
custody factors as she thinks about this decision. The children are young
and will need guidance for another 15 years. Bart can help. They are used
to having both parents involved and both parents offer them a unique perspective
that the other cannot duplicate. Bart will probably be more involved in their
lives if he is allowed to participate in decisions. The only statutory factor
relevant to custody is abuse. However, when the abuse is not directed towards
the children, a nexus between the abuse to a parent and harm to the child
must exist for the court to consider abuse when deciding custody. Here, there
is no evidence of such a nexus. Without a showing of unfitness, it would not
be advisable for Bonnie to oppose joint legal custody.
(5) See attached Child Support Worksheet for Sole Custody
Question II:
Sheila's petition will fail. With respect to parental visitation, the standard is always the best interest of the child. However, with respect to third party visitation there is a presumption that it is in the best interests of the child to be in the care and control of their parent(s) unless the parent(s) is/are unfit. FL § 9-102 states that a Maryland court may consider a petition for reasonable visitation of a grandchild by a grandparent and if the court finds it in the best interests of the child it may grant visitation rights to the grandparents. Since the best interests of the child means, at least in part, that the child should be under the care and control of a fit parent, a grandparent must advance something more than an argument that the child would be better off if it could visit the grandparents in order to justify granting an order over the objections of the parent(s). Troxel confirms the presumption that parental decision making is to be afforded at least some deference over the wishes of non-parents with respect to visitation with their custodial children. After Troxel a non-parent may still petition for visitation; however, unless the non-parent can show harm to the children or that the parents have refused any and all visitation, the petition will be denied. Here, there is no evidence that Bonnie is unfit. Nor has she refused to allow any visitation at all. Grandparental concern that they might get "completely cut off" is not enough to overcome the presumption that Bonnie and Bart are the people who get to make decisions for the children. Even on a straight best interests analysis it is far from clear that a visitation order for the grandparents would be the best decision here. The grandparents have not taken an active interest in the children and do not see them often. The grandparents do not have a strong relationship with the children. Furthermore, the proposed visitation schedule is excessive. To go from 1 or 2 visits per year to every other Saturday would be unwarranted and potentially disruptive to the schedules of the children and Bonnie. If Sheila concentrates on building a relationship with the child and with Bonnie she might find that Bonnie would welcome her participation in the lives of the children.
Question III:
(a) The "marriage penalty" could be challenged on Due Process grounds because it involves the fundamental right to marriage. The Supreme Court has held that there is a fundamental right to marital relations through a line of cases such as Griswold (1965), Eisenstadt (1972), and Loving v. Virginia. The next threshold question is whether the burden imposed by the statute is a direct and substantial burden on the right to marry. This test was set forth in Zablocki. Here, the increased taxation on married couples is probably not a direct and substantial burden on the right to marry, as the prohibition on marriage was in Zablocki.
Since the burden imposed by the taxation is indirect or insubstantial, the test used to determine whether it passes Constitutional muster is low-level standard of rational relationship to a legitimate government interest. The increased taxation would probably pass this test because raising funds through taxation is a legitimate government interest. Therefore, any federal lawsuit challenging the "marriage penalty" on Due Process grounds would probably be unsuccessful.
(b) As in Marvin, Harry may be able to argue that he is entitled to receive
financial support from Wendy based on several theories. Marvin v. Marvin,
557 P.2d 106 (Cal.1976). Marvin marked a shift away from prior public policy
not recognizing agreements between unmarried cohabitating couples for support,
and established that unmarried persons who cohabitate can contract with each
other in either an express or implied manner. Id. Harry may assert that he
had an express contract with Wendy for her to support him in exchange for
his assistance of her in entertaining business associates and maintaining
their home. Harry gave up his job as a chef based on Wendy's request that
he quit working. As the Marvin court stated, unless Harry's "consideration"
for the arrangement was sex, courts have generally enforced contracts between
unmarried couples under similar circumstances. Id. Harry is likely to contend
that this "consideration" in his agreement with Wendy would be for
him to help entertain guests/maintain their home. In addition to Harry's potential
claim based upon an expressed contract theory, he could allege he and Wendy
had an implied contract arising from the conduct of the parties. This, the
Marvin court stated involves a "tacit understanding" between the
parties that one of them would contribute services with the expectation of
receiving support in return from the other. Harry may successfully argue that
he and Wendy had such an implied arrangement. Harry may additionally claim
that he is entitled to support from their long term relationship based upon
a quantum meruit theory - that he should be compensated for the value of the
long term support and assistance that he has provided for Wendy to facilitate
her in her career. He could argue that Wendy has been unjustly enriched through
receipt of his services if he is not compensated in return through her promised
support. Harry can also allege that he detrimentally relied on Wendy's promise
to support him when he ended his career at her request. Based upon these theories
of recovery, Wendy may be compelled to provide support for Harry for a period
of time. Most jurisdictions including Maryland recognize contracts between
unmarried cohabitants/partners.
Wendy could argue that Harry has already been duly compensated for the services he has provided her, and that she has supported him long enough. Their mock marriage ceremony was not a legitimate wedding she could claim since everyone present knew that it was not intended to be such. Therefore, Wendy and Harry have not held themselves out as a married couple. Maryland does not recognize common law marriage. The couple has had no children which might otherwise necessitate Harry's continued unemployment to care for a small child. Bonnie may claim that Harry is capable of working and supporting himself. He is still able bodied, young enough, and has marketable skills as a chef. Although Bonnie can make these various arguments, it is more likely that Harry's arguments are stronger. The best alternative for Wendy might be to offer Harry a lump sum pay off to avoid possible litigation costs and a potential court award of support to Harry should he prevail. Based upon the various theories enumerated above, it is likely that a court in Maryland would rule in his favor based upon the facts.
(c) Common law marriage cannot be created in Maryland but Maryland will recognized
common law marriage if valid where contracted (Lex Loci). If the common law
marriage was entered into in South Carolina Maryland will recognize it as
valid. The requirements are: (1) The jurisdiction recognizes common law marriage
(South Carolina does recognize it); (2) There must be an agreement or present
intent to be married (Although Harry and Wendy did invite their friends over
for a "ceremony" and their friends originally through the couple
were planning to marry that is not enough since Wendy refused to marry Harry
outright due to the tax code "marriage penalty" although she appeased
him by promising to "stand by him"; (3) There must be a public declaration
of "holding out" as husband and wife (Harry and Wendy gave no such
declaration to others they were "husband" or "wife");
(4) There needs to be no minimum period of cohabitation (Harry and Wendy did
cohabitate); and (5) The parties both must have capacity (i.e. substantive
requirement defining capacity to marry) - Both parties did have capacity because
both parties were of legal age, gender, and there was no fraud or duress.
However, there was no common law marriage since there was no present intent
to be married and there was no public declaration of "holding out"
as husband and wife. Therefore, Harry has no potential right to support since
there was no common law marriage.
WORKSHEET A - CHILD SUPPORT OBLIGATION: SOLE CUSTODY
1. MONTHLY ACTUAL INCOME (before taxes) $ 4,600 $ 5,000
a. Minus pre-existing child support paymentactually paid - 500 -
b. Minus health insurance premium (if child is included) - 100 -
c. Minus alimony actually paid - -
d. Plus/minus alimony awarded in this case +/- +/-
2. MONTHLY ADJUSTED ACTUAL INCOME $ 4,000 $ 5,000 $ 9,000
3. PERCENTAGE SHARE OF INCOME (Line 2 Each parent's income divided
by combined income) 44 % 56 %
4. BASIC CHILD SUPPORT OBLIGATION (Apply Line 2 Combined to
Child Support Schedule) $ 1,539
a. Work-related child care expensesCode, FL, §12-204 (g) +
b. Extraordinary medical expensesCode, FL, §12-204 (h) +
c. Additional expensesCode, FL, §12-204 (i) +
5. TOTAL CHILD SUPPORT OBLIGATION (Add lines 4, 4a, 4b, and
4c) $1,539
6. EACH PARENT'S CHILD SUPPORT OBLIGATION (Multiply line 3 times
line 5 for each parent) $ 677 $ 862
7. RECOMMENDED CHILD SUPPORT ORDER (Bring down amount from line
6 For the non-custodial parent only. Leave Custodial parent column blank.)
$ $ 862
Comments, calculations, or rebuttals to schedule or adjustments
if non-custodial parent directly pays extraordinary expenses:
PREPARED BY: DATE: