Back to the Future? a Centennial Look at Family Law

• Publication year: 1997
• Pages: 137

26 Colo.Law. 137 Colorado Lawyer 1997.

1997, June, Pg. 137. Back to the Future? A Centennial Look at Family Law

---

137

Vol. 26, No. 6, Pg. 137

The Colorado Lawyer
June 1997
Vol. 26, No. 6 [Page 137]

Specialty Law Columns
Family Law Newsletter
Back to the Future? A Centennial Look at Family Law
by Bradley A. Friedman

In honor of the CBA Centennial Celebration, it befits us to reflect on our past, to see how far we have come - or not What follows is a look at cases from the turn of the century Read on, and then you can decide how far we have come. Is the family law practice all that different today than it was at the turn of the century

A Fraudulent Conveyance?

In 1894, Bessie Dye filed a complaint against her husband, Oliver, alleging nonsupport and requesting separate maintenance. 1 Bessie later amended her complaint against both her husband and other parties on the basis of a transfer of the equity in the only property that Oliver owned, and on the rent of which she was entirely dependent for support. Oliver, apparently did some pre-divorce planning, and managed to transfer title to what otherwise may have been considered marital property.

Needless to say, Bessie claimed she was destitute and that Oliver had an estate large enough to entitle her to counsel fees and monies to prosecute her action. Oliver, of course, denied it all, until testimony indicated that, at a minimum, he had an annual income of $2,500, payable quarterly. With this information in the record, the trial court ordered Oliver to pay Bessie $50 a month alimony, $100 counsel fees, and $25 court expenses. Oliver was indignant and appealed the order.

His only hope on appeal was an allegation that the original complaint could not be maintained because of a technicality. Oliver prayed for the court's sense of "equity," and hoped for the best. The appellate court found the order of the trial court was justified by the evidence. The amount of $2,500 went pretty far in 1894.

The Common Law Trap

The 1897 Colorado statutes declared marriage to be a civil contract. There was only one essential requirement to its validity: the consent of parties capable of entering into a contract. There were still statutory provisions as to a license, marriage certificates, and the authority to perform the marriage ceremony, but the courts refused to declare a marriage void because it was not contracted in accordance with these statutory provisions, or was contracted in violation of them.

Parnecy Taylor filed for divorce from her husband, George.2 There had been no marriage ceremony and no attempt to comply with the statutory provisions as to the solemnization of marriage. The marriage instead was created by a verbal agreement of the parties, followed by cohabitation for a period of about four years, "and general repute."

The case was before the court on an application for "alimony pendente lite,"temporary alimony awarded during the pendency of the litigation (today called temporary spousal maintenance). The trial court denied the application.

At first reading, this seemed to be a case of two young lovers, simply making a mistake that happened to last about four years. This idyllic view was bolstered by testimony that there was a pretend ceremony or contract just prior to the parties shacking up together. It was true love.

Our bubble is burst in the last portion of the opinion, where we find "that no marriage was ever contemplated, and that the relations between the parties were wholly meretricious." To make matters even worse, we learn that at the time the pretended contract was made, "plaintiff was 38 years of age; had been twice married...