part 2

• ABA code of professional responsibility


  To determine the reasonableness of fee, attorney should consider:
• Factors to consider for reasonable fee


  • Time and labor required
  • Novelty and difficulty of issues
  • Skill requisite to perform the legal service properly
  • Likelihood if apparent to the client that the acceptance of the particular employment will preclude other employment by the lawyer
  • Fee customarily charged in the locality for similar services
  • Amount involved and the results obtained
  • Time limitations imposed by client or by circumstances
  • Nature and length of the professional relationship with the client
  • Experience reputation and ability of the lawyer or lawyers performing the service and whether the fee is fixed or contingent
  • Conflicts of interest
• States differ on whether attorneys are allowed to represent clients with compelling interests
• Two different ways the states go when it comes to conflict of interest


  • Model code of professional responsibility
  • Model rules of professional conduct
• Joint representation


  Permitted if the attorney reasonably believes they can adequately represent both clients' interests and if both clients consent after full disclosure of the risks of joint representation
• American academy of matrimonial lawyers prohibits joint representation with client's consent
• California follows model code
• Divisible divorce


  Court has jurisdiction only over marital status, therefore court may not determine support, custody and property rights of absent spouse
• Forum non conveniens


  Court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case and transfers the case to such a forum
• Jurisdiction over the Plaintiff and the defendant


  • States have special jurisdictional rules that apply to divorce
  • States have subject matter jurisdiction to dissolve a marriage based on petitioner's domicile in the forum state
  • Personal jurisdiction over defendant is not required to terminate a marriage but notice to defendant is necessary
  • Notice must comply with due process
• Iowa has jurisdiction over the marriage as long as one spouse is domiciled in the state
• Residency requirements for domicile in Iowa


  Established good faith residence and physical presence with intent to remain
• Iowa's assertion of subject matter jurisdiction over the marriage based solely on the husband's residence in the state does not violate state and federal due process rights
• Husband established domicile in Iowa based on his good faith residence and physical presence in Iowa for over a year before filing, abandonment of his prior domicile in Japan and his intention to remain in Iowa indefinitely
• Forum non conveniens


  Discretionary doctrine, courts can decide to see the case, not mandatory
• Factors to determine appropriate venue: where it is easier to get the evidence, e.g. fault-based divorce under adultery
• Residence requirements for dissolution judgment


  May not be entered unless one of the parties to the marriage has been a resident of this state for 6 months and of the county in which the proceeding is filed for 3 months next preceding the filing of the petition
• Judgment for dissolution, nullity or legal separation of a same-sex marriage

  May be entered even if neither spouse is a resident or maintains a domicile in this state if the marriage was entered in California and neither party resides in a jurisdiction that will dissolve the marriage
• Durational residency requirements for divorce


  • Majority view - 6 months
  • Minority - 6 weeks to 1 year
• Spousal support


  Imposes on one former spouse the obligation to make future payments to the other for a period of time
• Principles and rationale for spousal support


  • Fault - punish the spouse who caused the marital breakup
  • Need - spouse is entitled to support at a level sufficient to stay off governmental public benefits, alimony ends when the need ends
  • Status - spouse should be able to maintain the same status as prior to the divorce
  • Rehabilitation - spousal support is allowed for the purpose of rehabilitating the spouse's ability to become self-sufficient
  • Contribution - spouse receives earned benefits from economic partnership, views marriage as a contract
• Modification and termination of spousal support award


  Spousal support awards are modifiable if there has been a substantial change in circumstances, and are typically terminated upon the obligor's death, recipient's death, recipient's marriage, or recipient's cohabitation with a new partner
• Bankruptcy law prevents discharging spousal support and other debts owed to a former spouse pursuant to a divorce decree in chapter 7 bankruptcies
• Child custody terminology


  • Custody - the right to care and control of a child including the right to make decisions regarding the child
  • Physical custody - the right to determine where the child resides
  • Legal custody - the right to make decisions regarding the child
• Standards for selecting the custodial parent


  • Presumptions - tender years presumption/maternal preference, primary caretaker presumption
  • Best interest of the child standard
• Standards for selecting custodial parent


  • The three approaches for custody determinations
  • Presumptions
• Tender years presumption/maternal preference


  Custody of children in their tender years is awarded to biological mother, absent unfitness
• Primary caretaker presumption


  Custody of children is awarded to the parent who has taken primary responsibility for the children's care
• Husband/father and wife/mother have two children ages 4 and 7 at the time they seek a divorce
• Trial award custody on tender years
• Equal protection


  Cause of action
• Tender years presumption violates equal protection
• Best interest of child standard


  Prevailing to determine child custody that is based on statutory factors regarding the child's needs
• Factors courts may consider in best interest of child standard


  • The wishes of the parents
  • The wishes of the child
  • The interaction and interrelation of the child with their parents, siblings and any other person involved
  • The child's adjustment to their home, school, community
  • The mental and physical health of all individuals involved
• California's best interest of the child standard 3020 legislative findings and declarations
• Constitutional limitations on what factors courts may consider when determining the best interest of the child


  • Limits on race based factors
  • Limits on religious based factors
• Strict scrutiny


  Legal test for limits on race based factors
• Palmore v. Sidoti - Reliance on race as a factor in custody determination violates equal protection
• Rational review


  Legal test for limits on religious based factors
• Establishment clause


  Separation of church and state