CLASS 1 AO 1: What is the revolution in families and how does it affect family law?

There was once a unified family, a modern family. There is no longer a single, culturally dominant pattern o The way people view and define family is changing from legalistic to a group of people who love each other o Modern family heterosexual parents with generally one income formal o Post-modern family from a biological to more functional connection Includes single parent, 2-income households, same sex parents o Dan Cere 2 competing views: ALI need to protect and promote family diversity Central role of marriage is to protect children, but sidelines marriage Beyond Conjugality (married relationship) Law must focus on close, personal adult relationships Dont give special recognition to specific arrangements like marriage You want some certainty and predictability AO 2: Does the State have a legitimate interest in privileging particular benefits? People recognize its being left to families and its not the state that says to families leave us alone o Warner benefits shouldnt be limited to certain family relationships Goes against democracy b/c government is getting into your business and dictating how you live State is pushing stable, long-term relationships Government is foreclosing alternatives to marriage Preferring a stable, long-term relationship over another type of relationship is bad Live and let live mentality people who do different than norm should be allowed to do that o Martha Fineman Family serves utilitarian function Family provides services by allowing society as a whole to not support family People depend on family rather than state for support Assumes people do a better job caring for families than state would o State makes families take care of kids by providing no alternative Creates benefits and incentives for families AO 3: Should marriage and is marriage the center of family law? Fineman: Married couples shouldnt be at the center children and dependents should be the focus o Wardle promotes heterosexual coupling only Marriage is at the center Sexual intimacy is safest and best when with same partner Good environment for children to develop proper gender roles

o Wardle logic is faulty only works if everything you learn only comes from family AO 4: The purpose and limits of family law Ellman: The purpose is to shield family from state, protect the family from the state and keep the state out of private business. o Family is where kids learn to be citizens o Fundamental tension between privacy and regulatory impulse other factors are at play than the law Even people who would never violate the law will violate a court order for the perceived safety of their children Tinkers Wedding: Sarah and Michael are poor Irish travelers in Ireland who sell cans. They have been together a long time and have children. Sarah decides she wants to get married in order to appear more legitimate and to improve her reputation. They find a priest who agrees to marry them for a reduced price and a metal can. During the night, Michaels mother takes the can and sells it for beer. The next day the priest refuses to marry the couple without the can. Sarah ties up the Priest and throws him in a ditch with the ring Michael made her to remind him of his broken promise. o Are they married? Family law governs relationships between people with money who can afford to pay for lawyers when theres property, custody, etc. People with no money are governed by the welfare system and often stay together because they cant afford to live separately Children, custody issues get state intervention Welfare law structures familial rights and responsibilities in poor families in many ways that are directly contrary to the laws regulation of wealthier household Ellman: Family law probably doesnt matter, because in the entire scheme of things, the law is a minor actor among all the factors that influence people in their intimate behavior o Easier to convince teens to use condoms than abstain from sexual activity CLASS 3 AO 5: What is Privacy under Griswold? Privacy is an unenumerated right under the Bill of Rights o Penumbra implied right under 1st, 3rd 4th, 5th and 9th Amendments o Established zones of privacy as a fundamental liberty interest o A right older than Bill of Rights, older than our political parties Does it affect gay rights? People coming together v. legal definition of marriage AO 6: What is Privacy under Eisenstadt? Right of governmental interference stops at the bedroom door Rights of married and unmarried people this is promising for same sex couples Criticized for 2 reasons:

o 1. Served as a barrier hiding spousal and child abuse (Casey) o 2. Completely negative only states that state will stay out of it no affirmative relief Post Eisenstadt: o Does it protect same-sex relationships? Bowers looks at tradition, culture, values and says same-sex marriage is not protected Looks at history and tradition of marriage in family Criminal sanctions are OK because same-sex relationships are not protected Original charges against defendant were dropped by he filed case anyway violating his Constitutional rights Dissent says consensual same-sex sodomy is not the issue, it was about the right to be left alone, which is the right most valued by civilized men Romer Wanted to amend the Constitution to say you cant have special protection for LGBT Lacks rational relationship to legitimate state interest Jus. Kennedy opinion stated that amendment would serve no legitimate interest other than hostility toward a group of people o About Equal Protection, not privacy AO 7: What are the Arguments, Pro and Con, for Protecting Same-Sex Intimate Relationships under Constitutional Privacy? Lawrence v. Texas (2003) 2 gay men engaged in consensual sodomy. SC held that the TX law was unconstitutional o Should Bowers be overruled? Bowers court answered the wrong question Not about sodomy, but laws touch on the most private human conduct in the most private place (the home) There needs to be legal consent o Majority cant use the power of the state to enforce their moral views on society Moral majority is not a legitimate state purpose Changing moral mores looking at what is accepted behavior in society Statute interferes with human autonomy o Relationship between 2 people makes this a fundamental right strict scrutiny Their right to liberty under Due Process Clause gives people the full right to engage in their conduct without the intervention of government Moral majority cant bully the rest of society if its a fundamental right between 2 people Cite Casey for recognition of intimate relationships AO 8: Are there any Alternative Arguments for Protecting Such Relationships under the Constitution?

 OConnor concurrence in Lawrence Use Equal Protection Clause, not Due Process o Equal Protection doesnt treat similarly situated people differently TX statute allows consensual sodomy between man and woman, only criminalizes behavior if it is between 2 people of same sex Due Process is a liberty interest right to privacy o Equal Protection states a moral disapproval of a group cant be a legitimate government interest Scalia Dissent: o If Equal Protection applies, how do you limit marriage to only between a man and a woman? Pro: Base it on history and tradition Con: Over time, history and cultures change and law needs to change CLASS 4 AO 8: At p. 67, Justice Scalia says, This reasoning leaves on pretty shaky ground state laws limiting marriage to opposite-sex couples. Is he right? Yes, If Equal Protection applies, how do you limit marriage to only between a man and a woman? Pro: Base it on history and tradition, Con: Over time, history and cultures change and law needs to change. Really just moral disapproval. AO 9: What about other areas of family law, such as gay/lesbian adoptions or consideration of sexual orientation in child custody disputes? (see p. 72) OConnors Equal Protection argument is strongest (even though it is not controlling, as it was not the majority opinion) Whether or not you are homosexual is irrelevant Courts are reluctant to make decisions based on sexual orientation for purposes of custody. Cannot be based on morality. Lawrence limits how it can be used as factor. AO 10: How about polygamy? it involves children which is a state interest bc minors, and state $ may be sued, minor females are usually the ones at risk. CLASS 5 AO 11: Why does the Family/Work Conflict matter for family law? Disproportionate contributions by one spouse or the other to market work versus domestic work may result in inequities at the dissolution of a marital or marriage-like cohabiting relationship, if not addressed in the financial remedies imposed at the termination of the relationship. For divorcing couples, the issues of fairness in the allocation of property, post-divorce income, and custodial responsibilities and opportunities become extremely important. Note 5, p. 88 Statutory Regulation on maternal/paternal leave issue if there is a termination of the relationship

o Child care o Child Support o Neglect o Structure of family o Divorce (attorneys fees) o Maintenance (alimony) o Parental participation o Property Distribution Effect of Great Recession: o People are not getting divorced because it is too expensive People talk about it more but are doing it less Need to find a third party to care for children when mom has to go to work o Cases of abuse have increased (spousal violence) o Recession in US hit men harder than women o Globally, women do 2/3 of worlds work, including unpaid, and earn 10% of worlds income, and own 1% of worlds property Women and men are working similar hours, but women do more unpaid work o Current climate couples have less time together Joan Williams Who is the Ideal Worker? o Someone who is always available unencumbered Mobile Flexible o PT workers are preferred by employers b/c they dont need to provide benefits o Male workers with wives are more efficient, b/c wife does their errands and chores leaving men able to work longer hours o Caregivers are marginalized cut off from roles offering responsibility and authority o Restructure workplace Increase flexibility Job sharing Care-giving leaves Gender-neutral employment policies US is only industrialized country without parental leave MaryAnne Case o Looks at issue from economic perspective Doesnt like idea of employers bearing burden of childcare Causes discrimination against childless workers Employers should not subsidize families with children Cheaper to bring in adult labor AO 12: Should the State Address Work/Family Conflict? Yes! o There are human needs we all have social interest

o Families need a support system Good for economy o Set up uniform framework that stops at front door o Equalizes gender roles less discriminatory o Healthy families are economically more efficient Gain efficiency through subsidies and assisting with time issues Aid with disabled members of families o State has an interest in kids No! o Families should care for their own kids without government intrusion Eichner you can reallocate responsibility between family and society and family at the same time o Governmental involvement is socialism ideologically repugnant o Prevents people who shouldnt have kids from having them Dont incentivize having children i.e. some people keep having children to get bigger welfare checks o Leave families to continue fixing their issues on their own o Personal choice to have children and how people want to raise their children CLASS 6 AO 13: What is required for Valid Marriage? Marriage is a legal status controlled in present-day life by state, but can be delegated to religious entities o Formal Requirements: Licensure Application form Physical examination (ensure no venereal disease) Solemnization Third party performs this pronounces man and wife Formal requirements Licensure and Solemnization Model Marriage and Divorce Act 206 o (a) A marriage may be solemnized by a judge of a court of record, by a public official whose powers include solemnization of marriage, or in accordance with any mode of solemnization recognized by any religious denomination, Indian Nation or Tribe or Native Group. Either the person solemnizing the marriage or if no individual acting alone solemnized the marriage, a party to the marriage shall complete the marriage certificate form and forward it to the clerk. o (b) If a party to the marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, he may solemnize the marriage by proxy o (c) Upon receipt of the marriage certificate, the clerk shall register the marriage

o (d) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed him to be so qualified. AO 14: What are the Consequences if Formal Requirements are not met? Why Licensure? o Provides disclosure between the parties o Archaic reasons why the state cares laws have been written on the books but never repealed o Marriage laws can be both overinclusive and underinclusive o NY Marriage Licensure Laws: Application: Ask age, previous marriage, relationship of the parties Under 18 needs parental consent o If parties are too young, marriage is voidable Voidable means contract is valid, and is not void until a court makes it void. Solemnization o Requires presiding official In NY NO ministers of Universal Life Church o No real requirements in language to solemnize Why do you need an official? o Decreases instances of fraud o Marriage is something public somebody else has to know about it Violation of formality requirement does not void marriage o EXCEPTION: If there is an express statutory requirement State v. Denton Facts: Deft was soliciting donations for a SIDS fundraising group. He had access to the bank account Group disbanded and account lay dormant for 7 years, at which time he withdrew the funds in the account and put the money into his account. At trial, he claimed spousal privilege that the woman hed been living with at the time was his wife. There was a religious ceremony but no license. Court held there were no privileges; Court of Appeals overturned o Spousal privilege preserves the sanctity of marriage because it hinders the ability of a couple to be open and honest with one another State has an interest in the relationship by determining your spouse is the only person you can confide your deepest, darkest thoughts Whatever is confided in during marriage is kept secret even after the marriage ends o Were they married? In the Courts opinion, in the absence of a license, they held themselves out as married and there is no statute that required a license Now that court has recognized parties as legally married, they will need to get a divorce If there is an express requirement for a license and people dont have one, they may be able to rely on property rights if they split up

AO 15: The Difference Between Void and Voidable Marriages Voidable: When a marriage violates statute for some reason, but action can be taken afterward to validate it. o Voidable marriages continue to be valid until the court makes it void Parties are too young to marry o Either party can attack a voidable marriage Only situations where outsiders can attack a voidable marriage is when 1 party is incapacitated (minor/incompetent) and deserves extra protection Void: When a marriage CANNOT be validated or corrected No marriage nullity because of substantive defect o Anyone can attack a void marriage o If a marriage is legal in the state where it was entered into, then it is not void in NY. o Marriages in violation of incest laws are void o Marrying an adopted child is NOT voided Highly criticized, because it should not just be a genetic issue, the emotional connection is important AO 16: What is Common Law Marriage? In re: Estate of Hall: Each party was separated from spouses pending divorce. Following divorce they began living together and acting as if they were married, but never were. They shared some expenses, went on vacation together, but had separate accounts. Woman put man as beneficiary on policies, but man did not reciprocate. Woman claimed they were planning to be married, but never got around to it it was just a formality. Witnesses testified that man said he had no intention of ever marrying woman. Issue: Whether the law considered them married o Court ascertained whether the lack of a license was accidental couple thought they were married. Testimony that he never intended to marry her showed lack of license was intentional Conflicting testimony is NOT clear and convincing evidence Common Law Marriage Requirements must be shown by clear and convincing evidence o 1. Formal Meeting of the minds Joining finances Beneficiaries for insurances People have to know they are living in a state with common law marriage o 2. Cohabitation No particular length of time o 3. Holding themselves out as married Reputation in the community for being married You can be married without a license and solemnization o Engaged couples dont hold themselves out as married. Common law marriage doesnt exist in NY, but will recognize a common law marriage from a state where it exists.

o 10 states allow entering into a common law marriage Common Law Marriage is real marriage o Need capacity to marry o Can end with death or divorce May be able to walk away if CLM, but third parties can pursue claims against you AO 17: What is Putative Marriage Putative Spouse: An innocent participant who has duly solemnized a matrimonial union, which is void because of some legal infirmity. o i.e. Bigamy In re: Estate of Vargas: Vargas had 2 wives. One he married in 1929, the second in 1942. Josephine was 2nd wife. When Vargas died, wives discovered each other. Estate divided assets equally, but first wife wanted more. o Rule: Theory of quasi-marital property equates property rights acquired during a putative marriage with community property rights acquired during legal marriage Evidentiary assumption in favor of latest marriage presumption is innocence CLASS 10 AO 18: Why did the middle class want legal divorce? Wanted the right to remarry and have legitimate children. For Respect. AO 19: Why was divorce an adversary proceeding everywhere? To provide defenses to divorce. AO 20: How could fault be shown? Could be shown by adultery, cruelty, desertion. Only the innocent party could file. Starts to bring in idea of recrimination, showing that was also guilty. AO 21: What were the reasons for no fault divorce? Not always someones fault that marriage ended. Collusive divorce- friendly divorce, made up some reason so they could get divorced. Fault made it harder to resolve custody, property, alimony (hard to put money value on someones pain. AO 22: Why do some states, including NY, retain fault? Leverage for property distribution and alimony. The waiting time. For no fault need to live part for at least 6 months, while fault has no waiting period. CLASS 11 AO 26: What is the Classic Common Law Title Rule? 2 Systems for Distribution: o 1. Common Law English Common Law System o 2. Community Property

 8 states LA, CA, NM, WA, AZ, ID, TX, NV Classic Rule: If your name is on it, its yours! Community Property: o Definition: All property acquired during marriage is shared EXCEPT gift, devise, bequest Equal Community Property (CA, LA, NM) o Not in-kind provision o Value divided in half Property given to each party is equal in value Assets may have a separate as well as community element i.e. inherit real estate from a relative and value goes up, as opposed to due to marital labor Common Law (Equitable Division) Source of Funds Rule o Marital property v. separate property i.e. rent from an inherited property remains property of inherited spouse o Rule: Each spouse owns everything they earned and everything that comes from that o Saff Example: Both parties were poor. Husband began a steel company with a small investment and it grew into a $450 million company. Throughout marriage husband told wife, whats mine is yours, baby. No constructive trust. She got none of business when they divorced. Constructive Trust is to avoid harsh results of common law title o No states are common law title states All states are equitable distribution except for 3 community property states (CA, LA, NM) AO 27: What is Equitable Distribution? Most states employ "equitable distribution" in dividing marital (community) property as a result of the dissolution of marriage (divorce). Instead of a strict 50/50 split (in which each spouse receives exactly one-half of the marital or separate property), equitable distribution looks at the financial situation that each spouse will be in after the termination of the marriage. While equitable distribution is more flexible, it is harder to predict the actual outcome, since the various factors are subjectively weighed. Factors considered in equitable distribution include: 1. Earning power of the spouses (one might be much greater than the other) 2. Separate property of the spouses (one might be greater in value than the other) 3. One spouse having done all the work to acquire the property 4. The value that one spouse contributed as the home-maker for the family

5. Economic fault of one spouse in wasting and dissipating marital property 6. Duration of the marriage 7. Age and relative health of the spouses 8. The responsibility for providing for children of the marriage 9. Spousal abuse or marital infidelity (to penalize the offending spouse) Equitable Distribution in NY: (pre no fault) o Needed to allege fault in order to receive alimony only available to an innocent spouse o Property distribution did NOT reflect fault o New No fault the ghost of what you earn is yours lives on to some extent, but the law will change with enactment of no-fault divorce on 10/12 CLASS 12 AO 28: Is marital misconduct a factor in equitable distribution? Marital misconduct [must be] so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship misconduct that shocks the conscience of the court thereby compelling it to invoke its equitable power to do justice between the parties Courts are generally instructed to make their determination without regard to marital misconduct or fault, so they will not typically punish or reward either party to the marriage on that basis, however, some courts will factor in any conduct by either party which has served to depreciate the marital estate and the assets thereof in some way, shape, or form; spouses who purposely and maliciously liquidated assets, or engage in activity which serves to depreciate those assets, will generally be viewed unfavorably by the court when it makes its determination as to the apportionment of the marital estate. OBrien v. OBrien: consideration of marital fault would be incompatible with the concept of marriage as an economic partnership AO 29: What is the law in New York? Same. CLASS 13 AO 29: What is the rationale in the OBrien Holding? Can a professional License be considered marital property? o Only NY considers a Professional License marital property Generally only occurs when the parties split up soon after one party gets license Court uses an Economic Partnership Theory o Court doesnt care the license is unalienable says legislature knew that

AO 30: What is the usual rule regarding Spousal Earning Capacity? Most states rejecting degree-as-property claims conclude that other remedies can be found to reimburse one spouse for the support provided to the other for schooling, sometimes by way of alimony and sometimes by creating restitutionary remedies designed just for this purpose. Postema v. Postema Facts: Wife left nursing school so husband could go to law school. Her salary contributed 80% of joint income. They had a plan that he would go to law school first and she would postpone her schooling until he finished. Her life revolved around not agitating him. He filed for divorce shortly after getting degree. o Issue: Whether the law degree was marital property o Concerted Family Effort: Not the degree itself that gives rise to an equitable claim, but the fact of the degree being the end product of the mutual sacrifice, effort and contribution of both parties as a part of a larger, long-range plan to benefit the family as a whole Reimburse wife for her sacrifices, but this is NOT a marital asset No stake in degree, but looking to make spouse who gave stuff up whole (restitution) o Compensation through alimony is not a good way alimony can be changed, modified, end on death and remarriage. Alimony based on need doesnt really fit o Maintenance looks to standard of living of people Trying to find middle ground in property/asset division courts have a lot of discretion o Court uses an equity analysis o ALI uses modified approach to alimony Treat payments as grounded in entitlement in property Fixed and paid out through future income Treating post divorce claim on other persons talent and labor as property AO 31: What is the usual rule regarding occupational licenses and educational degrees? An advanced degree has no exchange value it is personal to the holder o DeLaRosa Reimbursement How much did each contribute? What ar the debts Different ways to calculate Offset portion of what went to support o Postema uses equitable entitlement based on concerted family effort analysis o ALI uses flexible payment Distributive Award o Utilized in NY o Payment from income Not alimony, NOT tax deductible

Similar to alimony because it comes out of future income

CLASS 14 AO 32: What is goodwill? 1. Amount over and above the book value a buyer will pay for a business 2. Assets of a business: a. Equipment and fixtures b. Accounts receivable c. Property (if applicable) 3. Why would someone pay for goodwill? a. Easier to get customers going-concern value i. Not starting from scratch 4. 2 Types of Goodwill a. Personal tied to skills of an individual NOT marital property b. Enterprise goodwill attributable to the business and its anticipated future customers IS marital property 5. Hanson v. Hanson Facts: 2 oral surgeon partners both getting divorced. All parties use the same experts, but each wife receives a different amount of property based on the valuation of the business. Wives expert included good will and husbands expert used fair market value. a. Issue: Whether goodwill is a divisible property asset i. 5 methods set out to value goodwill 1. Capitalization rule a. Straight capitalization b. Excess earnings standard or IRS 2. Fair market value similar business in a similar location, sold in a similar market 3. Buy-sell arrangement amount set out in a buy/sell agreement b. Holding: Court uses Fair Market Value with no goodwill value i. 1. Does NOT take into consideration future earning capacity of the professionals goodwill or post dissolution efforts 1. Leads to double dipping if you turn future earning capacity into property rather than alimony 2. Future earnings relates to the person and Fair Market Value relates to the business overall a. Doesnt include the individual ii. 2. Most equitable and accurate to show true goodwill iii. 3. Avoids disturbing inequity in compelling a professional practitioner to pay a spouse a share of an intangible asset at a judicially determined value that could not be realized by a sale or another method of liquidating value c. Goodwill is based on equitable division of particular state - intangible i. Generally use either Hanson or Dugan

1. Dugan Future earning capacity has been enhanced because reputation leads to probable future patronage (pg. 406) a. Goodwill is based on reputation of individual b. 2 steps: i. 1. Identify portion of income attributable to goodwill 1. Treats divisible property as a portion attributable to goodwill what does the average person in the field earn v. how much is taken in ii. 2. Capitalizing income flow and determine present value 1. Generally looking for a term of years a. Number of years excess earnings a purchaser is willing to pay for in advance c. In a practice industry, goodwill often leaves with the practitioner d. Holding: Goodwill is measured by past earnings and the probability that they would continue 2. Fudge Factor: (Carol Bruch) a. Goodwill of business is worth equity in house using goodwill allows court to have more flexibility when dividing assets 6. Dont confuse professional goodwill with future earning capacity AO 33: Why did the Hanson and the Graham trial courts reach such different conclusions? Bc one included goodwill and the other did not. AO 33: How does the Missouri Supreme Court resolve the goodwill issue? We define goodwill within a professional setting to mean the value of the practice which exceeds its tangible assets and which is the result of the tendency of clients/patients to return and to recommend the practice irrespective of the reputation of the individual practitioner. Problem 4-11, page 418 a. Husband helped with business, provided funds and did some work for free. He had no regular employment. Reputation of product attached to the wife i. 2 issues: 1. How the business assets are to be valued a. Enterprise goodwill v. personal goodwill i. Wifes goodwill is not transferable

ii. Product goodwill depends on whether it is a well-known brand b. Market value v. capitalizing income flow depends on whether you can count her personal reputation as property i.e. celebrity reputation Piscopo 2. What is the husbands claim on the assets ii. As Husbands attorney tread carefully!! 1. Threat of exposure increases bargaining power 2. Everyone loses if there is exposure and the other partys financial security is decreased. a. Husband as former bookkeeper can have dirt on wife and her business Problem 4-12, page 418 b. Separate Personal Good will from enterprise good will i. Sometimes just market price is sufficient 1. Capitalization a. Look at final amount b. What is a reasonable investment i. Go backwards to determine what its worth 2. If this is really Future Market Value, no buyer is confident company is worth more if it is generating a lot of money a. Buyer has low confidence reduces value of business b. If all value is in personal good will, it cant be sold 3. Appraisers deliver opinions and they can err in valuing process depending on what they consider important Problem 4-13, page 418 c. Husbands argument i. Not marital property, all personal goodwill which cant be separated all good will is based on his personal reputation 1. No separation of increased assets after petition ii. Best argument his skills are personal to him Hanson case personal goodwill d. Wife argument i. Husband acquired his reputations during the marriage and waiting until after divorce to start his new business 1. Can someones past experience to bolster his future earnings considered property? ii. Wifes attorney wants to characterize husbands good will as property and the wife has a right to a future benefit 1. Goodwill developed during his time in the governors mansion iii. Wifes best argument: This is the Piscopo case Celebrity good will is a marital asset

1. NY is a good place to argue celebrity goodwill as property Elkus case opera singers career was marital property 2. Golub Relationships and skill are analogous to marital property professional license

CLASS 16 AO 34: What is Rehabilitative Alimony and when is it appropriate? Gives spouse time to become more productive in work force and be self-sufficient o May be a spouse cant get more o Incentives found in step-down reductions Rehabilitative Alimony is financial support that is provided for a short period of time to allow the receiving spouse time to get adjusted, establish him/herself financial. This type of alimony will allow the divorced spouse time to rehabilitate themselves and becomes completely self-supporting o Temporary award for purposes of enabling dependent spouse to become self-supporting. AO 35: What is Rescission and when is it appropriate? Rose v. Rose Where there is a short marriage, the Court puts parties back where they started o This is rescission, which is a contract remedy o Appropriate in a short marriage