Family Law SyllabusProfessor Coombs
Page 1Fall 2005
FAMILY LAW
FALL 2005
SYLLABUS & INTRODUCTION
Professor Coombs
Class: MTTh 3:30-4:25 pm
Office Hours : M4:30-5:30 pmand by appointment
Office: G279Law Library
Tel.: [305]
Fax: [305] 284-1588
AssistantLely Rodriguez
Text and Other Materials: The texts for this course are Harris, Teitelbaum & Weisbrod, Family Law [3d ed],the Florida Family Law statutory supplement,(noted as “F” in syllabus and downloadable from the class website) plus additional materials (noted as “H” in syllabus) (available at the distribution center). There may also be questions and problems for class discussion; to the extent possible, I will post these on the class websiteduring the week previous to the one in which they will be discussed. Please check the website regularly; you are irrebuttably presumed to have received any administrative material posted to the website.
Code Names: By the end of the second week of class, you should provide to my assistant your name and the code name which you will use for the quizzes (see Grading, infra). I can then grade and return the quizzes, while maintaining confidentiality. Please provide this by emailing her from the email address you regularly use.
Grading: Please read the following section very carefully.
Grading in this class will be based on two distinct measuring tools (each with sub-parts).
First, there will be a number of short, in-class quizzes, which will be multiple-choice and/or short answer. They will be given at the beginning of a class session, shortly after we have completed the segment of the syllabus to be tested. Note that if you have a disability problem that may require accommodation in taking the quizzes, you must see Dean Lennon about this by the end of the second week; we can, as needed, work out an accommodation that will minimize the risk of identification. The quizzes, in total, will be worth forty percent of the final grade.
Second, there will be a structured negotiation and related assignments. There are five different hypothetical cases. For each one, there will be a law firm/team representing each party, of four students (or as close as can be managed, in light of final class size). Each problem will be used once or twice. If you wish to choose your own law firm partners, you should do so by the end of the second week and inform my assistant of the identity of the partners (I will construct firms as needed from remaining students.) The common facts will be posted to the class website by the first day of classes. You may indicate a preference for a client; to the extent possible consistent with the need to have both parties to a particular problem represented and to use all the problems, I will try to meet such preferences.
Once firms are constructed and clients assigned, the firms will each receive another set of their common facts and a set of additional facts about your “client.” The law firms and student members will have three tasks.
First, they should interview the "client," at which time they will seek to establish more clearly the relevant facts and the client's goals, as well as respond appropriately to the client's concerns. The names and contact information for the previous students who are taking on the role of witness will be posted along with the common facts. The interview should take approximately 25-30 minutes and in no case more than 35 minutes. Two team members, chosen by the team, should do the interview; remaining team members are to view the interview, either as it is occurring or on videotape, and should each submit a short (1-2 page) reflection piece within one week of the interview date, indicating what they believe went well or badly in the interview. The videotape similarly is to be submitted to me for grading purposes. [The interviewers will be graded together; the other team members will be graded individually on their reflection papers.] [Team members are responsible for (a) arranging a room for the interview (rooms can be requested from the circulation desk of the library, 284-3554 and/or from Pat Santa-Coloma for rooms 216A and B (284-3978) and for the negotiation discussed below, (b) for setting a time in conjunction with the "client," and for arranging to have these exercises videotaped, either with their own equipment[1] or through the Law School audiovideo services. If you wish to use law school video, you should make your request by email to .]
Second, each member of the team, individually, should prepare a pre-negotiation memorandum indicating what he or she thinks would be the likely outcome(s) if the case were to go to trial, including the most likely substantive and procedural problems, and what issues might suggest the desirability of resolving the issue by negotiation. This memo should be based on the facts you have from the materials provided and from the interview, including an understanding of what the client’s goals and bottom line are, and the law in the materials assigned for class. You should not undertake outside research. If you are aware of some outside materials that seem highly relevant to you you may refer to them. If you do so, you should provide me with a complete citation to them. Further, you may use such materials in the course of the negotiation only if you provide them to the “opposing counsel” prior to the negotiation session. The memo should also indicate what the author’s goals and strategies are for the negotiation.
Third, the team members who did not do the client interview should engage in a negotiation with the corresponding team members from the law firm representing the opposing party, again for approximately 30 minutes and no more than 40 minutes. (The client should not be present for this; assume you will confer with him/her afterwards in regard to the tentative settlement the lawyers have reached.) This negotiation is to be videotaped. Again, the remaining team members may be present, or may view the videotape; in either event, they should each individually submit a short reflection piece within one week of the negotiation, indicating what they believe went well or badly, and what they might have done differently, either in the negotiation itself or the planning. [The negotiators will be graded together; the other team members will be graded individually on their reflection papers.][Again, team members are responsible for (a) arranging a room for the interview (rooms can be requested from the circulation desk of the library, 284-3554 and/or from Pat Santa-Coloma for rooms 216A and B (284-3978) and for the negotiation discussed below, (b) for setting a time in conjunction with the negotiators for the opposing party and for arranging to have these exercises videotaped, either with their own equipment or through the Law School audiovideo services. If you wish to use law school video, you should make your request by email to I will need only one videotape from each negotiation, toghether with the reaction papers from the non-negotiating partners from each team.]
Timing: All client interviews must be completed and the videotape and reaction papers submitted no later thanSeptember 30, 2005. (Note that if you run close to this deadline, you will create a time crunch for yourselves in preparing the pre-negotiation memo, since its content depends in part on the results of the interview.) Some of the issues raised will not yet have been discussed in class. My expectations of your degree of legal knowledge will reflect this. I suggest you prepare for the interview, if necessary, by skimming the relevant sections of the statutes and other class materials and/or of a summary such as Legal-lines, Gilberts, Nutshell or Understanding Family Law.
All pre-negotiation memos must be submitted no later thanNovember 5, 2004.
All negotiations must be completed and the videotape and reaction papers submitted no later thanNovember 18, 2004.
Altogether, the various assignments related to the negotiation will constitute sixty percent of the total grade. Thirty percent will be based on the pre-negotiation memo; fifteen percent on the interview or interview reflection paper, and fifteen percent on the negotiation or negotiation reflection paper.
My primary concern in regard to the interview and the negotiation is how you use those skills in the particular context of a family law problem. This involves both a knowledge of the relevant law (including the extent to which that law is clear or muddled, rigid or flexible), and of the sorts of goals people may have and how a lawyer can ethically advance them. Because many of you will not have a relevant skills background, I will try to arrange a brief discussion, by me or a guest lecturer, at appropriate times in the semester, about the interview and negotiation processes. In addition, prior to doing the interview, you should read pp. 356-66 in the casebook; prior to doing the negotiations, you should read pp. 366-74 and 379-86 for background material on these skills.
Note that there will be no final examination.
class attendance/participation and grade effect: Both regular attendance and participation in class discussions is expected. Family law, perhaps even more than most topics, is enriched by a variety of thoughtful perspectives on the interface of doctrine and the activities of people in families and of the various institutions that affect families and their members. Class attendance and participation in class discussion, will be taken into account in grading at the margins (e.g., a grade at the upper edge of a C+ could become a B if class participation were very good; a grade at the lower edge of a B could become a C+ if class attendance/participation were very poor). Four or more unexcused absences will subject you to these or even more severe sanctions.
introduction to Topic:The area of family law has exploded in recent years -- both in the sense of covering a far wider territory and, unfortunately, in the sense of a fragmentation among various sub-areas. In this course, I expect to focus primarily on the law governing the behavior of adults in families. We will first examine questions of dissolution of marriage and its economic aftermath: division of property and alimony. The next portion of the course will focus on the legal creation of a parent-child relationship and child support, custody and visitation rights in disputes between persons with such relationships to the same child, and the cross-cutting questions of procedure, jurisdiction and lawyering in the family law context. Because we need to get some grounding for the issues particularly relevant to the scenarios before you do the related exercises, we defer to the end of the course the questions at the beginning of the casebook, dealing with the legal rules governing the activities of persons within an ongoing marriage or in alternative intimate relationships and the creation of a marriage. We will not deal directly with other “family law” material, regarding direct state control of children or of parenting (i.e., delinquency, adoption and determinations of dependency and/or termination of parental rights based on parental abandonment, abuse or neglect.
Particularly in a place like South Florida, the rules to apply are affected by mobility before or after the legal conflict being examined. We will thus consider consistently during the course how courts deal with marriages, divorces and support and custody arrangements originally entered into in other jurisdictions – both other states, such as New York, and other States, such as France.
In exploring doctrine, I hope to set it within the framework of certain overriding questions that seem to infuse a wide range of issues comprised by “family law.” One overriding concern is the conception of the family itself. The family (like the corporation) can be conceived essentially as an entity in and of itself, upon which the state operates and which the state is committed to fostering and protecting. Alternatively, the family can be conceived of as an institution within which individuals interact, with the individuals themselves as the primary objects of government concern. The first perspective, as we shall see, is the more traditional. It is reflected in notions of marriage as a status and in the reluctance of the state to intervene in family matters. The latter perspective, rooted in liberal insistence on individual rights and autonomy, is reflected in notions of marriage as a contract and, simultaneously but somewhat contradictorily, in a greater willingness to permit the state to intervene in family matters at the behest of parties with less power within the family constellation.
Other overriding themes include questions of what a “family” or a “marriage” is, who has the power to make those definitions and how immutable the definitions are. We will thus constantly be considering the role of the parties, tradition, and explicit state regulation in defining “marriage” or “family” and in delimiting the permissible interactions within the family and between the family and various other entities. We will explore the extent to which both the rules defining family and the rules governing families are prescriptive or default rules. That is, to what extent may persons choose to operate under a different set of rules and still obtain legal recognition of those choices?
Family law is in a state of flux in its answers to these fundamental questions. It also bears a problematic relationship to the actualities of human behavior in families. Consider, in particular, the effect of such variables as class, ethnicity and sexual orientation on both the legal and sociological aspects of “family.”
This leads to two other overarching questions for family law. First, to what extent is “law,” in its traditional role as a relatively stable, predictable set of rules, appropriate for dealing with the highly individualized and fluid questions with which family law deals. To what extent is a body of law rooted in vague standards and readily subject to modification in light of “changed circumstances” “law” at all? To what extent should appellate courts control the decisionmaking of trial courts? What legal rules facilitate such control and uniformity, and what are the costs of imposing a rule-like structure?
Secondly, how might the peculiar characteristics of family law and of the kinds of disputes upon which family law operates lead us to a different conception of the role of the lawyer vis-á-vis the client or vis-á-vis broader social interests.
Over the course of this semester, I hope we can use a close study of certain family law doctrines, to explore these questions. In addition, I want to examine the role of the family law practitioner, as lawyer, advocate, counselor and businessperson. How can the family lawyer best apply family law doctrines (as well as other relevant legal rules) in the pragmatic context of the ongoing relationships among his/her client and other family members?
SYLLABUS
All page references are to Harris, Teitelbaum & Weisbrod, Family Law, unless preceded by an "H", in which case they refer to the handout available at the distribution center. In addition many assignments include statutory sections (almost all Florida Statutes, indicated as §§xx. All can be found in the Statutory Compilation, ordered by section number. In addition, I will intermittently post on the class website sets of “Questions and Problems” to be used together with the assignments to which they correspond. Note that when there is a “Problem” I will expect you to be able to analyze that problem in class, unless I have indicated otherwise.
Thus you should each have (1) the casebook; (2) the Handout, (3) the Statutory Compilations, and (4) the Questions and Problems. Item (2) is available for purchase at the distribution center. Items (3) & (4) are posted on the website; the latter in stages over the course of the semester.
The operative presumption is that each listed assignment will comprise the materials for one class, except for the starred assignments,whicht will likely take 1½ or 2 class periods to complete (listed assignments 2 & 3 will probably extend over a total of three class periods).
Dissolving Domestic Bonds
1.Divorce: fault or no-fault? and evaluating divorce reform
287-306, 309-16, 323-45,§§61.001-044, .052
2*. Property Distribution[2]
[Skim 387-98], 398-402, 411-24, 425-30,§§61.075, 61.077
3*.Spousal support
[Skim 430-39], 439-59, §61.08, H 2 - 10 [Noah, Rosen, Rosecan]
4. New forms of property
459-70, 473-500,§ 61.076
5.Limiting the effects of marriage: Premarital Agreements
725-54, H 11 - 16 [Posner, Doig]
Family Definitions
6.Who is a Father/What are his Rights and Duties I
839-41, 850-67[skim §§742.011, -.031, -.091-.10, -.12], H 17 - 21 [G.F.C.]
7.Who is a Father/What are his Rights and Duties II
867-99, H 22-33 [E.A.W.]
8. Step-Parents and Other Partners
911-43,§§751.01-05, H 34 - 36 [Query]
Access to Children
9.Custody: Introduction/Caretaker Preference
621-43, §61.13[3]
10.Joint Custody
643-60, §61.121, H 37 - 51 [Hector I & II, Bracken]
11. Custody Criteria
660-94
12.Relocation and Modification of Custody
700-11,715-23, §61.13(2)(d), H 52 - 61 [Perez, Knipe, Flint, Dorta-Duque]
13. Visitation and its Enforcement
695-700, 711-715, 841-50§61.13(4), §§ 752.01 et seq., H 62 - 70 [Van Eiff, Davis]
Family/Money
14*.Child Support
501-19, 526-42, §§ 61.13(1), 61.30, H 71 - 78 (Ortega, Finley, Saporta]
15*.Modification of Financial Obligations
549-78, § 61.14, H 79 - 94 [Bridges, Pimm, Overbey, Jackson, Pohlmann]
16. Enforcement of Financial Obligations
578-602,[Skim §§ 61.1301-.13016], H 95 - 99 [Gregory]
Forming Domestic Bonds
17.Marriage and Family: Introduction
3-30
18. Marriage and its limits
155-94, §§§741.0305, 741.04, 741.211
19.Alternatives to ceremonial marriage
229-67, H 100-104 [Posik]