Family Law Syllabus

Fall 2013


Professor Barbara Stark, Room 107 (Library) 516-463-5994
e-mail: barbara.j.stark@hofstra.edu

Text: Ellman et al., Family Law: Cases, Text, Problems (2010 5
th
Edition)

I am generally available to meet after class. (I am not available during the hour before class.) In
addition, if you email me Ill be happy to schedule a mutually convenient time to meet with you.

ATTENDANCE POLICY AND CLASS PARTICIPITATION

Family Law is one of the most challenging courses in law school. It is critically important not to
fall behind. Accordingly, students are expected to attend every class, and to be on time for every
class. Each class will begin promptly.

At the start of each class, I will circulate a sign-in sheet for you to record your presence. It is
your responsibility to make sure that you have signed the attendance sheet. Any student who is
not signed in will be conclusively considered absent for the day. If you miss more than 20% of
the class hours for this course it may affect your grade. Please note that I do not draw any
distinction between excused and unexcused absences; this policy is not about fault, but about
whether or not you have been present in class.

Students should also be prepared for every class. This means completing the assigned readings
before class, understanding the cases, and being prepared to discuss any assigned problems.

Your grade may be bumped up for exceptional class participation (from a B+ to an A-, or from a
C+ to a B-, for example) or bumped down (from a C to a C-, or from a B+ to a B-) for lack of
participation or failure to prepare for class.

Phones should be off and you should not be on the internet during class.

No Laptops During Class
This course does not lend itself to laptop note-taking. Surveys at other schools (and
previous students who have taken this course at Hofstra) indicate that students are more satisfied
with the learning environment in no-laptop courses. Although some students prefer to use
laptops, a larger number of students in the surveys say that classrooms are quieter, they can hear
the teacher and other students better, and they feel more engaged in the classroom experience
with fewer distractions. Accordingly, in Family Law you may not use a laptop, or any other
electronic device, during class.


EXAM

The final exam will consist of a 1-1/2 hour multiple choice section (70% of your grade) and a 1
hour essay (30% of your grade.) You may use your text, class notes, handouts and any outlines
from these materials which you have prepared, alone or with classmates. No other outlines,
including commercial outlines, may be used.

Sample exam questions (and answers) will be distributed and discussed in class.


Class #1
pp. 3-20


Chapter 1. Introduction
A. The Themes of Family and Family Law
1. What is the revolution in families and how does it affect the direction of family law?
2. Does the State have a legitimate interest in privileging certain kinds of families?
3. Should marriage be at the center of family law?
4. What is the purpose of family law? What are its limits?


Class #2
pp. 25-42 (note 2)
Problems at pp. 38


B. The Family as a Regulatory Classification
1. Zoning Rules Problems 1-1 through 1-4
2. Rent Control Regulation


Class #3
pp. 44-58



C. Families and the Constitutional Right to Privacy
1. Evolution of the Right of Privacy
Griswold v. Connecticut
Eisenstadt v. Baird

1. What is privacy under Griswold?
2. What is privacy under Eisenstadt?
3. What are the arguments, pro and con, for protecting same-sex intimate relationships
under constitutional privacy?
4. Are there any alternative arguments for protecting such relationships under the
Constitution?




Class #4
pp. 58-76
Problems 1-5, 1-6


Lawrence v. Texas
1. At p. 67, Justice Scalia says, This reasoning leaves on pretty shaky ground state laws
limiting marriage to opposite-sex couples. Is he right?
2. What about other areas of family law, such as gay/lesbian adoptions or consideration of
sexual orientation in child custody disputes? (see p. 72)
3. How about polygamy?

Class #5
pp. 76-100
Note 4


D. Family, Work and Gender
1. Patterns of Employment, Family Responsibilities, and
Gender Roles
2. Regulatory Approaches to the Work Family Conflict
Joan Williams, Unbending Gender

1. Why does the Family/work conflict matter for Family Law? (Everyone should be
prepared to list at least three reasons!)
2. Should the state address the work/family conflict? Why or why not? How?

If you sit on the right side of the room (facing forward, your right), please be prepared to
argue Yes! and to explain your answer. If you sit on the left side of the room, (facing
forward, your left) please be prepared to argue No! and to explain your answer.

Class #6
pp. 121-43
Problems 2-1 to 2-2



A. Entering Marriage
1. Formal Requirements
a. Licensure and Solemnization
Denton
b. Common Law Marriage
Hall
c. Putative Spouse Doctrine
Vargas

1. What is required for a valid marriage?
2. What are the consequences if these requirements are not met?
3. Whats the difference between a void marriage and a voidable marriage?
4. What is common law marriage?
5. What is a putative marriage?

Class #7
pp. 143-65, 173-74
(note 8)
Problems 2-3 & 2-4
2-5 at 151
2. Substantive Requirements
a. Constitutional Restraints
Zablocki v. Redhail
Varnum v. Brien


Class #8
pp. 175-85, 189-99
Problems 2-9, 2-11 to
2-12

c. Other Restrictions on Available Marital Partners
i. Age
ii. Non-relation
iii. Monogamy
d. Consent Requirements


Class #9
pp. 204-15, 222-25
pp. 228-37, 248
Problems 2-15 to 2.16


B. Law of the Intact Marriage
1. Duty to support
McGuire v. McGuire
2. Spousal Control Over Earnings and Property
C. Consequences of Marital Status
1. Names
2. Liability for Spousal Violence


Class #10
pp. 255-64
pp. 269-81
(through note 5)
pp. 314-15
Problems 3-1 to 3-4


Chapter 3. Dissolving the Marital Status
A. The Origins and History of American Divorce Law
1. Early American Divorce
2. American Divorce in the Twentieth Century
3. The Development of the No-Fault Approach
B. The Modern Law in Action
1. Pure No-Fault Systems
2. Limited No-Fault Systems

1. Why did the middle class want legal divorce?
2. Why was divorce an adversary proceeding everywhere?
3. How could fault be shown?
4. What were the reasons for no fault divorce?
5. Why do some states, including NY, retain fault?


Class #11
pp. 317-36
Problem 4-1
Chapter 4 Property Division and Alimony Upon Divorce
A. Property Division: General Principles
1. The Classic Common Law Title Rule
2. Equal Division
PROBLEM
3. Equitable Division
Michael v. Michael
Toth v. Toth

1. What is the classic common law title rule?
2. What is equitable distribution?



Class #12
pp. 336-55
Problems 4-2 and
4-3
NOTES AND QUESTIONS
PROBLEMS

1. Is marital misconduct a factor in equitable distribution?
2. What is the law in New York?


Class #13
pp. 380-401

C. Should Earning Capacity,Professional Credentials or
Goodwill Be Treated as Marital Property?
1. Earning Capacity and Professional Credentials
OBrien v. Obrien
Postema v. Postema

1. What is the rationale behind the OBrien holding?
2. What is the usual rule regarding spousal earning capacity?
3. What is the usual rule regarding occupational licenses and educational degrees?


Class #14
Thursday, October 7
pp. 401-419

1. Goodwill
Hanson v. Hanson
Problems

1. What is good will?
2. Why did the Hanson and the Graham trial courts reach such different conclusions?
3. How does the Missouri Supreme Court resolve the goodwill issue?


Class #15
pp. 419-37
New NY
Maintenance
D. Alimony
1. History and Historical Justifications
2. The Struggle for a Modern Rationale
Note: Gender Patterns in Alimony Claims
Note: The Debate Over Differences in the Financial Impact
of Divorce on Men and Women
a. The Weitzman Data on the Gender Impact of Divorce
b. Beyond Weitzman: Assessing the Gender Impact of
Divorce
3. Why Do We Have Alimony?
Clapp v. Clapp
Marriage of Wilson
Problem



Class # 16 1. Size and Duration of Awards Following a Long/Term
pp. 447 (note 8 &
Problem 4-16)-- 465
Problems 4-17
4-22

Marriage
Rainwater v Rainwater
Hecker v. Hecker
NOTE: EARNING CAPACITY LOSSES AND THEIR
RECOVERY
PROBLEMS
RECISSION AFTER THE SHORT-TERM MARRIAGE
Rose v. Rose
1. What is rehabilitative alimony? When is it appropriate?
2. What is rescission? When is it appropriate?


Class # 17
pp. 504-18

A. Duty of Support
1. Duration
a. General Rule
b. Post-Majority Support for Disabled Children
d. Pre-Majority Termination of Support
2. Support of Step-Children
3. Relationship Between Visitation and
Support Obligations
Problems





Class #18
pp. 559-69
pp. 573-84

7. Modification of Child Support Awards
Notes
Problems
a. Serial Families
Kestner v. Clark
Problem
C. Enforcement of Support Orders
1. Traditional Difficulties in Collecting Support
2. Governmental Involvement in Support Enforcement
3. Enforcement Remedies
a. Income Withholding
b. Contempt
Notes
Problems







Class #19
pp. 623-39


Chapter 6 Child Custody
1. Brief History of Inter-Parental Custody Disputes
2. Children and Divorce: Perspectives from Social Science
B. The Best Interest of the Child Standard
2. Determining the Childs Best Interests
a. Gender and Caretaking Roles
Burchard v. Garay
Problem



Class #20
pp. 671-93

C. Alternative Custody Decision Rules
1. Joint Custody
McCarty v. McCarty
Problems
2. Past Parental Caretaking Roles
a. Primary Caretaker Preference
b. The ALI Standard-Approximation of Past Parental Roles
Problem


Class #21
pp. 694-718
D. Rights of the Noncustodial Parent
1. Visitation Rights
Notes on the Enforcement of Visitation Orders
2. Naming the child
E. Modification of Custody
Burchard v. Garay
2. The Problem of Relocation
Marriage of Lamusga


Class #22
pp. 757-74
Chapter 7 Divorce Jurisdiction
A. Termination of Marital Status
Sosna v. Iowa
B. Jurisdiction to Issue Support Orders and Divide Property
Kulko v. Superior Court of California
Problems





Class #23
pp. 810-32
Problems at p. 849-
50

A. Premarital Agreements
2. Should Courts Ensure the Procedural or
Substantive Fairness of Premarital Agreements?
a. The Traditional Rule of Heightened Scrutiny
Button v. Button
Gant v. Gant
b. The Contractual Model
Marriage of Bonds



Class #24
pp. 863-83

B. Separation Agreements
a. The Traditional Bargaining Process
b. Mediation as a Means of Achieving Agreement
2. The Requirement That Divorce Settlements be
Judicially Approved
Weber v. Weber


Class #25
pp. 889-901
pp. 907-15

b. Special Rules to Govern Bargaining Over Children
3. Where there is Only One Attorney
a. Joint Representation
b. Where Only One Party is Represented
5. Limitations on the Subject or Terms of
Separation Agreements
a. Children
b. Arbitration Clauses
c. No-Modification Clause
Problems


Class #26
pp. 990-1016

B. Unmarried Parents and Their Children
1. Establishing Paternity
a. Methods of Proof
b. Biological or Social Paternity?
i. The Uniform Parentage Acts of 1973 and 2002
Problems






Class #27
1204-24

C. Overriding Parental Authority in Order to Protect
Endangered Children
Standard for State Intervention in Child Abuse and
Neglect Cases
In Re Texas Department of Family and
Protective Services
Problems


Class #28
pp. 1259-77

5. Termination of Parental Rights
In Re Adoption/Guardianship No. J9610436
Research on the Adoption and Safe Families Act
Problems