Christine Family Law Spring 2023
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Feb 20, 2024
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Class 1 (in class): - Family forms have changed in the US, even in recent years. Marriage rates have declined, even in the last two decades. Today, less than half of American households have a married couple. Divorce rates are hard to measure, it depends on so much – age of marriage, whether there were kids, etc. Way more children are born to unmarried mothers these days. Part of this is the fact that
some couples with children are together but are not married. - Birth certificates used to only have the genetic parents of the child, a husband and wife. - The respect for marriage act: recent law signed by biden which replaces the defense of marriage act, in which the federal government said that a marriage is only between one man and one woman in all the
states. Windsor v. US struck down part of this. The respect for marriage act says that the federal government and state governments need to respect marriages regardless of genders, races, and ethnicities when considering whether a marriage is valid. - One of the reasons the government is into deciding which marriages are valid is supposedly because single parenting can lead to poverty and depending on the government. - The privatization of dependency is promoted by the laws more than people needing public support and care. - The village of belle terre v. …: - This is a zoning law that prohibits certain types of families from moving in. belle terre restricted occupancy to …, was this constitutional? Or did this infringe on rights that warranted constitutional protection? Homeowner challenged, claiming that it violates equal protection and due process. Justice Douglass announces that the court concluded that this did not violate equal protection or due process. The ordinance was reasonable, not arbitrary. The court used a rational basis level of review to come to this conclusion. Because these plaintiffs are not members of a particularly protected class, they do not have a claim to anything but rational basis. US dept of agriculture v. Moreno struck down
a part of the welfare act. This case narrowed the definition of an eligible household. Only
certain households can be eligible for food stamps. Bare dislike of an unpopular political group is not enough to change the law to exclude said group from government aid. Douglass: A town can decide which qualities it wants and can decide to protect those qualities in some way. Like a quiet town can have rules to be a quiet town. The goals of this town are legit, but there are different ways to maintain these rules. You have to show that a fundamental right has been violated to get strict scrutiny. The right of association under the 1st amendment and the 14th right are being violated. Thus, this should warrant strict scrutiny. The right to establish a home is an essential right under the 14th. The right
to be left alone and privacy are also important rights. - Next case - Mrs. Moore's (grandma) son is (Dale SR.) Dale Sr. had a son (Dale Jr.). Mrs. Moore also lived with John Jr., who is Mrs. Moore’s grandkid and Dale Sr’s cousin. The East Cleveland ordinance required a linear model of descendancy, which meant Mrs. Moore could live with John Jr. or Dale Jr. Mrs. Moore could face a criminal charge and conviction by continuing to live with both grandchildren. Under due process and equal protection clause, Mrs. Moore comes to court. Slight majority in favor of finding that this
violated Mrs. Moore’s constitutional rights. Justice Powell emphasized that these types of
ordinances are problematic because they cut into the heart of family. He also said that the
goals of the city were valid but the way the city was going about this was wrong. It
doesn't seem fair that grandma would become a criminal. Courts have long recognized the freedom of personal choice in the context of family. This has great historical importance which the state cannot enter. The problem with this ordinance is that it serves
its goals marginally at best. Mrs. Moores house was a 2 house structure. In 2018 this was
the 4th poorest city in country - City of Ladoo v. Horn: - The definition of family that is at issue here is …. Why doesn't this household comply with the ordinance defining housing? They were unmarried and had children from previous relationships living together. The ordinance limits occupancy to one or more persons related by blood, marriage, or adoption. This couple and their children were not related by blood, marriage, or adoption. The one person exception was built in for nannies or a live-in housekeeper. To portray themselves as a family, the couple points to the fact that they share a bedroom, share a joint bank account, discipline each others childrens, cook together, and entertain together. They live in a 7 bedroom house. There is more than enough space for all of them. This family claims to be a functional and factual equivalent of a natural family. They say that they are a conceptual family, even though they don’t have the formal ties that would legally make them a family. This kind of ordinance is economic and social regulation. This is the stuff of local government. There is no fundamental right here because these folks are not a legally recognized family. The court also dismissed the family’s claim that they should be a legally recognized family because just because an unmarried couple shares chores while living together, there needs to be some sort of explicit legal commitment. Without marriage, there is no show of long term commitment. From privacy to liberty: CB 32-36; 55-59 (Note 3); 63-84 Griswold v. Connecticut: - Issue: Information, instruction, and medical advice was given to married persons as to the means of
preventing conception. - Rule: §§ 53-32 and 54-196 of the General Statutes of Connecticut say that people who prevent conception should be charged more than $50 or hailed more than 60 days or both. ___________________________________________________________________________________ Scarborough 11 - 11 non related people living together. This did not end up going to court, but several courts around the country have struck down these ordinances which do not allow for non-
traditional family living situations on due process grounds, privacy grounds, etc. Two definitions of family tend to be used in zoning codes: related family, and unrelated family. Griswald: What did this anti-contraception statute criminalize? Contraception. Both patient and doctor would be punished. Where does Douglass locate the right to contraception in the constitution? In the due
process clause of the 14th amendment. Douglass also says that a lot of the amendments considered
together create penumbras, or implied rights. Douglass says that this is a very sacred right to family – the marital bedroom should have sacred privacy. Douglass says that this right of privacy is older than our bill
of rights. Goldberg cites the 9th amendment to say that although this is an unenumerated right, it is a right. This statute has such a sweeping scope that it deprives people in marriages of their freedom and thus of due process. Without a judicial support, the majority is sitting as a super legislature or imposing its
will on the people. Black says that although he agrees, the court should not impose their own personal values on the people. Stweatrt says this is an unenforceable and silly law. Why did this arise in the 1960s? Birth control pill was relatively new. The second case has a different kind of constitutional analysis than griswold. It violates the equal protection clause of the 14th amendment because it classifies unmarried persons differently from married
persons. It’s not really for health because if the motivation was for health it would apply to married and unmarried persons alike. In the third case the law accused people of lewd and lascivious cohabitation. Different sexed people who are living together outside of marriage. A couple that was living together winded up being convicted of this crime. The Supreme Court of Florida reversed their convictions. The state had to prove more than just
an occasional encounter to convict someone of this crime. Just one act of secret lewdness is not enough to say that someone is cohabiting. Why does the court think cohabitation is worse than sex outside of marriage? They thought it was bad for public morality. If you are sleeping with someone on the sly, you're not openly setting a bad example for the public. Two provisions of the alabama code that have differences — no race is mentioned in the first one, race is mentioned in the second. This is meant to prevent living together without marriage. This was especially bad if the couple is an interracial couple. Since the white and black participants have the same punishment Alabama says there is equality here. Lawrence: They did not say that bowers controls. The whole question here is whether they should conform to a precedent under stare decisis. Is there a reliance interest? Not one that is too great on criminalizing sodomy. This is not about the right to engage in sodomy, it is about the right to personal relationships. This is a liberty interest in intimate decision making. The way that this works to criminalize
an entire case of people made this law (bowers) get struck down. How can you tell a state that a couple has to be able to be married when them being together is criminalized Lowe v swansons: the state law that the petitioner violated was that incest is not good. What one jurisdiction thinks is incest might not be what another jurisdiction thinks is incest. Step father and daughter relationship. Can there be real consent in this case? Even though the daughter is an adult?
___________________________________________________________________________________ Getting Married: Controversies and contracts. Materials on engagement ring law and etiquette. CB 59-61 (Note 4);
444-454
- In Thomas, the Florida Supreme Court drew a distinction between “one act of secret lewdnenss,” which the law could tolerate, and “cohabiting together as thought he marriage relation existed,” which it could not. - Heartbalm cases: it used to be the case that people could sue meddlers who break up marriages (for
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men) or men who lead married women to have sex outside of marriage by trickery (for women). These days, there is no available cause of action related to seduction, adultery, or broken engagements. Today the most common controversy from a broken engagement is whether an engagement ring must be returned and whether nonrefundable wedding expenses must be shared by both parties. Most states say that rings are conditional gifts which must be returned, others allow the ring to be kept if the donor caused the broken engagement. In most states, courts do not order reimbursement of expenses incurred for a wedding that did not occur (Except NY). that means that women and their families end up bearing a disproportionate burden of a broken engagement. - The age of consent was made because only women may become pregnant, and they suffer disproportionately the profound physical, emotional and psychological consequences of sexual
activity. The statute at issue here protects women from sexual intercourse at an age when those
consequences are particularly severe. Premarital agreements: - When a couple plans for marriage, they might want to determine in advance the financial consequences of divorce–whether and how their property should be shared and whether either
spouse should have a responsibility to pay support to the other. This gives marriages stability because it forces couples to review financial issues before marriage. Simeone v. Simeone: - Issue: Couple signed a prenuptial agreement on the eve of the wedding. Woman says she did not understand what she was signing, having no benefit of counsel, and claimed that the prenuptial was void. - Rule: the Superior Court viewed Geyer as permitting a prenuptial agreement to be upheld if it either
made a reasonable provision for the spouse or was entered after a full and fair disclosure of the general financial positions of the parties and the statutory rights being relinquished. - Analysis: - At the time the agreement was signed, no disclosure was required with respect ot rights which were not then in existence, in the alimony pendente lite was relinquished. The prenuptial form said that the appellant has been informed and understands that if not for the alimony, she might get more money. Thus, appellant's claim is not that the agreement failed to disclose the particular right affected but rather that she was not adequately informed with respect to the nature of alimony pendente lite. - Geyer was decided at a time when women were unequal to men, and were viewed as not
knowledgeable enough to understand the nature of contracts that they enter. Geyer was a
very paternalistic take, and so should be discarded. - Contracting parties are normally bound by their agreements, without regard to whether
the terms thereof were read and fully understood and irrespective of whether the
agreements embodied reasonable or good bargains. Ignorantia non excusat.
- Everyone who enters a long-term agreement knows that circumstances can change during
its term, so that what initially appeared desirable might prove to be an unfavorable bargains.
If the parties choose not to address such matters in their prenup, they must be regarded as
facing a contract to bear the risk of events that alter the value of their bargain. - Lady says this agreement was presented to her at 5pm on the eve of her wedding, when to seek counsel would involve the trauma, expense, and embarrassment of postponing her
wedding. This was proven to be untrue. - Freedom of contract - The uniform premarital agreement act UPAA allows for courts to reject a premarital agreement only if it: 1. Wa not voluntary; or 2. Was unconscionable at the time of execution, and the individual challenging the agreement was not given sufficient financial disclosure and did expressly waive in
writing the right to financial disclosure. - The Uniform premarital and marital agreements act UPMAA was meant to unify law on premarital
agreements and create consistency with the law of marital agreements, long treated as a separate
category by courts. Under the UPMAA, an agreement is unenforceable if: 1. The party seeking to avoid enforcement proves that consent to the agreement was involuntary or the result of duress; 2. The party didn't have access to independent legal representation; 3. Unless the party had independent legal representation, the agreement did not include a waiver of rights or an explanation in plain language of the rights or obligations modified
or waived by the agreement; or 4. The party didn't receive adequate financial disclosure before signing the agreement. -
This means the party did not have reasonable time to: a. Decide whether to retain a lawyer, and b. Locate a lawyer…, obtain the lawyer’s advice, and consider the advice provided. - Under the UPMAA, a court can refuse to enforce a term of the agreement if the term was unconscionable at the time of signing. - Only 2 states have adopted the UPMAA. - Under both the UPAA and the UPMAA, a court can order support to avoid the spouse seeking support becoming eligible for public assistance. Marriage as a right: Brief of Historians of Marriage and the American Historical Association as Amici Curiae in Support
of Petitioners in Obergefell v. Hodges CB 85-92 Three substantive restrictions are on the choice of marriage partner:
1. The requirement that the spouses be different sexes (the same-sex marriage prohibition – thanks to Obergefell v. Hodges, this is restriction is now gone), 2. The requirement that the spouses be unrelated (the incest prohibition), and 3. The requirement that there be only two spouses (the polygamy prohibition) Consider the Due Process Clause doctrine that has accorded constitutional protection to certain family
relationships (including marriage), or the Equal Protection Clause doctrine, which disfavors laws that promote inequality among identity-based groups. Loving v. Virginia: about the constitutionality of racial restrictions on the choice of marital partner. - Issue: does a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violate the Equal Protection and Due Process clauses of the 14th amendment? - Rule: - Virginia statutes automatically void marriages between a white person and person of color. - Pace v. State of Alabama: court upheld AL statute forbidding adultery or fornication between races with a harsher penalty than adultery or fornication between members of the
same race. - Analysis: - Lovings were allowed to suspend 25 year jail sentence if they left Virginia and stayed out of the state until the 25 year span was up. - The state is correct in that marriage is a social relation subject to the State’s police power. - The state is wrong to assume that its powers to regulate marriage are unlimited. The mere fact of equal application of this law does not mean that these statutes are allowed under the Equal Protection Clause. - This statute rests on distinctions drawn according to race.
After Loving, the Supreme Court’s 1978 decision in Zablocki v. Redhail struck down a state statute that precluded noncustodial parents with unpaid child support obligations from marrying unless they first received a court order permitting them to marry. The court described marriage as a fundamental right and
as the foundation of the family in our society. - Today, courts tend to separate the due process analysis of fundamental rights from the equal protection analysis of impermissible classifications. - In Turner v. Safely, the Court struck down a state regulation that allowed prisoners to marry only if
they first received the permission of the warden, which would be granted only for compelling reasons. Today, people recognize that inmate marriage is an expression of emotional support and
public commitment, that has religious significance, that inmates will eventually be released, and that marital status is often a precondition for receipt of government benefits, property rights, and other benefits (like legitimate children). Substantive Restrictions and their Limits: Gender: CB 40-44; 93-105; 178-182 Obergefell v. Hodges: - Issue: - Petitioners seek to be allowed to marry someone of the same sex and have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. - Rule: - Analysis: - Marriage has a religious background. Historically, marriage has been between a man and
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woman. - Petitioners do ont seek to devalue marriage, they want this right because they respect the privileges and responsibilities of marriage. - Conclusion: - Just as marriage evolved when women gained rights, marriage can evolve to allow gay marriage. - Dissent: This is not a matter of whether states should allow gay marriage. It is
about whether the constitution allows gay marriage. The constitution leaves that
question to be decided by the people of each state. Traditionally, marriage is for procreation, so there are grounds for states to object to gay marriage. Abortion is a different category than private masterbating laws because there is more than one interest/life
to consider. Marriage: the method of the person who calls off the wedding is controversial because it is hard to
actually investigate people's behavior in the context of their relationships. The prenup only let the wife have $200/week and capped out at $25,000, just about two years. She didn't have her own counsel, but she made it seem like she didn't have the chance to get counsel. She could have
gotten a lawyer if she had this information prior. The reasonableness standard is that if the parties entered
into the contract, then the parties believed the contract to be reasonable. Unenforceable if the other spouse will need public assistance. These prenups cannot determine child
custody, child support – these need de novo review to look out for childrens interest. You can't deny the right to marry on a value so unsupported as on the basis of racial classifications. We give other jurisdictions comity – we say that their marriages are valid in other states unless the
marriage goes against public interest. Some people were prohibited from marrying until they were able to prove that they could earn enough
child support. Wisconsin said they had really good reasons for this – child support is important, having
more kids could make the state more strained, and gets rid of dead-beat dads. The court said this rule is
invalid. This is because access to marriage is a fundamental liberty interest and this exclusion significantly burdens the liberty interests of parents. In terms of fairness, the reasoning had little to do with rich or poorness. Additionally, this rule does not stop people from having kids – it just stops them
from getting married. Female prison inmates only could get married if they were pregnant. Court struck this down because the
right to marriage is for everyone. The rationale for this rule was that it would create love triangles, make
disorders in the jail, and allow abusive relationships (marriage under coercion). This was to protect women from bad decisions, which is mad paternalism. This also infringed on the rights of non-inmates who wanted to get married to inmates.
Doma limited marriage to different sexed couples. It also said states don’t have to recognize any same sex
marriages that go through in any other states. Even if the marriage equality movement made same sex marriage legal, it was not recognized in every state. Civil union was created to be marriage for same-sex couples. Holes in the procreation argument: fertility has never been a litmus test for hetero marriages – you don't enforce that against hetero couples who cannot reproduce. If Massachusetts cares about children, why can
homo couples adopt children? This implies that Massachusetts recognizes homo parents as being in legitimate homo marriages. Hernandez: there are only so many marriages to be granted, so we should only give marriages to people who truly need marriage (this limited marriage to hetero people), because hetero couples may accidentally
procreate. Obergefeld was super about the right to marry. Casey, lawrence, reiterated that the right to marriage is a fundamental right. ___________________________________________________________________________________
Incestuous and plural marriages: CB 105-124; Conn. Gen. Stat. §§ 46b-20–46b-30:
- Incest is a crime, but whether a relationship is incestuous often arises in non-criminal contexts. Israel v. Allen: - This provision of the Colorado Uniform Marriage act is unconstitutional as violative of equal protection of the laws. - Israels, brother and sister by adoption and not be half or whole blood, wanted to get married. The legal intent behind adoption makes sure that adopted children have the same rights as natural children. That being said, not all rights are shared by adopted children. The criminal incest statute
does not prohibit sexual relations between adopted brother or sister. Nevertheless, this is not legitimate state interest in family harmony. It is just as likely that marriage between adopted brother and sister will result in family discord as a normal marriage. Thus, these two should be allowed to get married. The children’s interest: there is big risk that incestuous children will have deformities. Polygamy: - Polygamous marriages are not recognized in any state of the US. invalidation of the different-sex marriage requirement raises questions about justifications for the two-person marriage requirement. - Reynolds v. US: polygamy in Utah is still illegal. State v. Holm: - Issue: Was Rodney Hans Holm appropriately convicted for bigamy and unlawful sexual conduct with a minor?
- Rule: - Bigamy illegal. Utah’s bigamy statute: a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” - The definition of “marry” is disputed. - Analysis: - Holm had a wife. Holm then married a 16 year old (his wife’s sister). - Holm says he did not “marry” the 16 year old. Under the law, he only married once. The court says he purported to marry the 16 year old, which counts under the bigamy law. The
bigamy statute does not require a party to enter into a second marriage (however defined) to run afoul of the statute; cohabitation alone would constitute bigamy pursuant to the statute’s terms. They even said marriage vows. The girl wore white. They both referred to
the ceremony as their wedding. The ceremony was officiated by a religious leader. Considered altogether, their actions were that of a married couple. - Holms says that the state of Utah cannot criminalize polygamy because the freedom to engage in such behavior is a fundamental liberty interest that can be infringed only for compelling reasons and that the State has failed to identify a sufficiently compelling justification for its criminalization of polygamy. The court said there is no fundamental
liberty interest to engage in this type of polygamy.
- This case is like Lawrence v. texas. How much say does the state have in private matters? The state can prevent the formation and propagation of marital forms that the citizens of the State deem harmful. - Holm said this law violated his federal right to equal protection under the law because it impermissibly distinguishes between married and unmarried couples. If the 16 year old were actually married to Holm, the state could do nothing to stop them. - Conclusion: - While the state’s power to interfere with the pirate relationships of consenting adults is limited, it is well established that the same is not true where one of the individuals involved in the relationship is a minor. - Dissent: this interpretation of “marriage” takes away the legal importance of marriage. Acting like the second marriage is real is not relevant to the law – it is
merely a personal choice since the second marriage is not legal. Bigamy laws prevent marriage fraud/abuse of women and children. The fact that people only get in trouble for bigamy when they are with a minor suggests that bigamy itself
is not what the state aims to prevent. Polygamous people can adopt children, so bigamy isn't necessarily bad for child rearing. Procedural restrictions, informal marriages, and nonmarital couples: - Consent and formal requirements: CB 130-155; Conn. Gen. Stat. §§ 46b-31–46b-35 - In Re Marriage of Meagher and Maleki: - The law in CA has long been that an annulment of marriage may be granted on the basis of fraud only “in an extreme case where the particular fraud goes to the very essence of the marriage relation.” - This rule means the court should reverse a judgment granting an annulment to a
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wife whose husband, prior to the marriage, misrepresented his financial status and fraudulently induce her to invest in a business venture with him, with the intent to gain control of her assets. - In the absence of fraud involving the party’s intentions or abilities with respect to
the sexual or procreative aspect of marriage, the long-standing rule is that neither
party “may question the validity of the marriage upon the ground of reliance upon the express or implied representations of the other with respect to such matters as character, habits, chastity, business or social standing, financial worth
or prospects or matter of similar nature.” - Meagher does not contend that there is any evidence that Maleki lied to her about his marital history, or that he concealed an intention not to have sexual relations with her, not to live with her after the marriage, or not to discontinue an intimate relationship with a third party. - Marriage for Same-Sex Couples: - Baehr v. Lewin: 1993 Hawaiian case that ruled that the different-sex requirement in the state’s marriage law classified based on sex and thus needed to satisfy strict scrutiny under the state constitution’s Equal Rights Amendment
- Goodridge v. Department of Public Health: - Civil marriage enhances the welfare of the community, encourages stable relationships, is a social institution of highest importance. The reasons gay people cannot marry is to provide a favorable setting for procreation, to ensure the optimal setting for child rearing (hetero), and to preserve scarce state and private financial resources. These reasons are wrong. - Civil marriage laws do not privilege procreative hetero intercourse between married people above every other form of adult intimacy and every other means
of creating a family. Fertility is not a condition of marriage, nor is it grounds for
divorce. Hetero people can adopt children. - There is no evidence that not allowing gay marriage will keep gay couples from raising children. The government concedes that gay couples can be excellent parents. The plaintiff couples are families (have children), who deserve all the opportunities to grow up in a secure, protected family unit. - There is no rational relationship between gay marriage and the economy. - Hernandez v. Robles: - The NY constitution does not compel recognition of marriages between members of the same sex. - The welfare of children is more important to promote stability, and to avoid
instability, in opposite-sex than in same-sex relationships. Gay couples actively
choose to have children. This means that gay couples will not have children on
accident. Having children on accident can lead to unstable hetero situations. - Children should grow up with a mother and a father. Scientifically, both roles are important. According to social science, however, this is untrue. - Thus, there are rational grounds on which the legislature could choose to restrict
or allow marriage to couples of opposite sex. States should decide for
themselves. - Obergefell v. Hodges: - There are four reasons that marriage is fundamental under the constitution and should be applied with equal force to same-sex couples: - There is a right to personal choice regarding marriage. This is inherent in the concept of individual autonomy. - The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. - Marriage safeguards children and families and thus draws meaning from related rights of child rearing, procreation, and education. - Marriage is a keystone of our social order. - United States v. Windsor: - Although marriage is up to the states, congress has the power to make determinations that
bear on marital rights and privileges to ensure efficiency in the administration of its
programs and to choose what larger goals and policies to pursue. The DOMA singled out
married same sex couples for adverse treatment in everything from tax to immigration to
social security. The principle purpose and necessary effect of DOMA was to demean those persons who are in a lawful same-sex marriage. - Leax v. Leax: - Mrs. Leax appeals the trial court’s decree annulling her marriage to Mr .Leax. She petitioned for divorce, alleging that the marriage had become insupportable because of
discord or conflict of personalities between herself and Mr. Leax and that Robert was guilty of cruel treatment toward her. Mr. Leax denied being cruel. - Mr. Leax then said that Mrs. Leax had eight previous marriages, and wanted an annulment on the basis of fraud (he didn't know about the other marriages when they got married). The trial court found that this was fraud, and Mr. Leax was entitled to an annulment. - Mr. Leax said that had he known Mrs. Leax had been married 8 times, he wouldn't have married her. This is more credible than Mrs. Leax's claim of cruelty. Therefore, this court supports the annulment of the marriage. – should drunk people be able to get hitched (like in Vegas)? Or are drunk people unable to truly consent?
If they can, why do we sometimes annul marriages between people who marry for the green card? Marriage formalities: to create a valid, ceremonial marriage, states generally require:
- A marriage license, and - Solemnization of the marriage by a qualified officiant. Marriage licenses: every state requires couples to obtain a marriage license before participating in a
marriage ceremony, but courts disagree about how to handle the failure to obtain the license. - Estate of DePasse:...
- Carabetta v. Carabetta:... Solemnization:... - In the matter of last will and testament of Robert C. Blackwell Informal marriages and nonmarital relationships
: CB 155-174 Marriage recognition: CB 129-130; 174-178 ___________________________________________________________________________________ The rules said that no state needs to respect same sex marriages performed in other states. Under DOMA, homo couples didn’t count as a surviving spouse if one partner died. J Kennedy says that this is
a gross violation of due process and equal protection. This is degrading and dignity restricting treatment.
The argument that the states sole interest is about binding parents to children, and not about love in marriage is hugely wrong. The ability to choose who to love has been important in this country. It has not always been all about procreation – George Washington had step children. In some ways the enduring qualities of marriage is because of the way marriage has evolved. Because this is an equal protection violation because it doesn't pass rational bases, adopted siblings can
get married. Reynolds: polygamy is not a warranted exercise of liberty. In Re marriage of meagher and maleki: the wife was seeking an annulment on the grounds of fraud. She
thought the husband would have a lot more money than he did, and she ended up putting a lot of money
into a business with him under this false impression. Wife purchased 3 pieces of land property, husband
led wife to believe that she would be refunded for these purchases. Husband then didn't have enough money to cover their living, business expenses, or taxes. Wife sought an annulment rather than a divorce because the fraud started before the marriage, she didn’t want to divorce for religious reasons, and because she might lose a lot of marriage from a divorce, and an annulment would make it easier for her to
claim property as her own. The court says that annulments for fraud should only be in extreme cases (it is basically reserved for sexual stuff). The fact that someone was married 8 times suggests how seriously someone takes marriage, how someone understands marriage, etc. This should be taken into consideration of an annulment because it is
a material factor that goes to the essence of the marriage. Being married 8 times could show that a certain
person does not view marriage as a “death-do-us-part” commitment. Woman hospitalized and executed a will for her brother to get everything. After the will, she wanted to marry Jack Harris, the next day the woman died. This was a death-bed marriage, but the two had a long relationship prior to the marriage. There now was a dispute of whether her things should go to her brother,
which was executed by hand and was not notarized, and the husband. The will directed the brother to donate the super bougie paintings to different museums. The statute says if you preside over the marriage,
without making sure that the couple has a valid license, the person is able to be prosecuted. There is no valid marriage without a valid license.
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Catholic traditional ceremony, married for 20+ years, raised 4 children together, but apparently never got
a marriage license. Because of this, the couple arguably never had a license. CT says that this marriage does not have to be voided because there was no license, because the law in CT did not explicitly say that
this was the case. Blackwell case: older couple, two widowers, husband dies, wife elects to request will for spousal share. Husband's siblings don’t like this, saying she isn't entitled to the spousal share because they weren't really
married because they were married by an individual who is licensed by the universal life church and not a
judge. The couple tried to get a judge to marry them. The judge was on a weekend and didn't want to do work. The judge’s wife referred them to this person who was licensed by the universal life church of California. Is this person allowed to marry people in the state of mississippi? Court says this was close
enough to an organized religious institution, even though the man wasn't really understood as a minister
under mississippi state law. Hargrave v. Duvale: the daughters of the father are challenging the existence of a common law marriage. They did not want his long time romantic partner recognized as the dad’s spouse. This couple did a lot of traveling, lived in many places together, etc. Lady took him to hospital care when treatment was needed in
other states. Just a few years later, dad was killed in a rock climbing accident. They were together 14 years, but never formally married. The two spent time in places that recognize common law marriage. The
pair acted as husband and wife. South Dakota abolished common law marriages (south dakota was one of their main places) unless the marriage was recognized by another jurisdiction. The “wife” said that the pair were not married under Mexican common law marriage, but had a gender union. In Oklahoma, the pair would have a common law marriage so long as there was a mutual agreement to be married. This couple never specifically agreed to get married (she couldn’t cite a specific moment that would satisfy the consent requirement). Carter: This couple was Michael Hunter and Steven carter. They had a 17 year relationship where they lived together. Early in the relationship, one asked the other to marry him. The two celebrated the date,
exchanged rings, and had a joint mortgage. Each had power of attorney over the other, supported each other financially, both families treated the other man as their spouse. Carter died in a motorcycle injury. Hunter filed for spousal. No family members opposed this, but at no point could Carter or Hunder have gotten married in their home state. The state said if you entered into something like common law marriage
prior to 2005 when gay marriage was legalized in pennsylvania, then this marriage would be valid. Retroactive recognition is also required under Obergefell. Williams: innocent parties should be protected at least to some decree from the fact that their marriage
was invalid when they couldn't have known. In general, there needs to be a good faith belief that the marriage is proper. ___________________________________________________________________________________
E
volving models of marriage CB 183-205; 225-238 - William Blackstone, Commentaries on the Laws of England, Vol. 1: - By marriage, the wife used to become a part of the husband. Covert-baron. - Care, companionship, and support: - McGuire v. McGuire:
- Wife wanted to recover suitable maintenance and support money and for costs and attorney’s fees from husband.District court said wife was entitled to use the
husband's credit and the husband had to pay, made the husband pay for the wifes
travel to visit daughters, purchase a new car with a heater, pay for the personal expenses of the wife, give the wife a personal allowance, pay attorney’s fees, and
purchase a modern home elsewhere for the wife. - Early 1900s family. Wife had children from prior marriage. Lived on a farm. - This
court said that living standards should not be up to the court, but left for the husband
to decide. - Graham v. Graham:
- Husband suid former wife. In 1932, the wife agreed to pay the husband $300/month until they decided otherwise. This agreement was to convince the husband to travel with her for her job rather than find his own job. Wife says she
does not remember this agreement and never wanted the husband to give up his job. - This contract was doubtful, married women couldn't make contracts like this under michigan law. - Even if this contract were within the contractual power of the parties, the husband has a duty to support his wife. A contrary contract is contrary to public policy and unenforceable. Other things, like getting married but agreeing not to have sex or agreeing that the husband does not have complete control over where the couple lived was illegal for this same reason. The law prohibited married person from altering by private agreement the personal relationships and obligations assumed upon marriage based on sound foundations of public
policy. - The McGuire court said that standard of living is a matter for the household to determine, and declared that courts should decline to intervene in an intact marriage, unless the parties are living apart. - Four pillars of traditional marriage: - Common law marriages: one party must prove that the couple has acted married - Fault-
based divorces: on party must prove the other breached the marriage contract - Annulment fraud cases: one party must prove the other misrepresented their ability to carry out essentials of the marriage. - Traditional marriage: - marital unity, - fixed gender roles, - standard obligations set by the state, and - marital privacy. - Modernizing Marriage: - Cheshire Medical Center v. Holbrook: - Issues: - Does the necessaries doctrine as articulated in our common law violate the equal protection clauses of the New Hampshire and United States Constitutions? - If so, should the doctrine be abolished? - If not, should the liability imposed under the doctrine be sole,
joint and several, or primary and secondary? - Analysis: - There are three options for the common law necessaries doctrine: - Abandon it, - Impose joint and several liability, or - Impose secondary spousal liability - Conclusion: - The necessaries doctrine is unconstitutional and should be abolished or revised to impose reciprocal responsibilities upon husbands and wives
- The spouse who receives the necessary goods or services is primarily liable for payment. The other spouse is secondarily liable. - Borelli v. Brusseau: - Complaint (wife) sought specific performance of a promise by appellant's deceased husband, Borelly, to transfer property to her in return for her promise to
care for him at home after he suffered a stroke. - Husband said that he really did not want to be in a nursing home, so this oral agreement was made. - A marriage contract must differ from other contractual relations. Marriage is a matter of public concern. Married people must support each other while they are
living. This means that with OG marriage, wifes have a duty to take care of their
ill husbands. Because of this, the new oral contract is void. - Dissent: this is outdated logic. If the president’s wife gets ill, he isn't going to drop everything to personally nurse her back to health. Owning and Controlling Property and Wealth: - Before, married women had no legal capacity to enter into contracts, own, sell, or exchange property, or to keep any income she earned. The abolition of coverture by state statue meant that married women could retain ownership of separate property, but it did not entitle them to share in
the property or earnings of their husbands. - Ways couples can share property: - Community property, - Joint management - Sole management - Equal management - Ways couples can share ownership of property: - Tenancy by the entirety: only for married couples. Each spouse has a half-interest in the property. - Joint tenancy: must have a unity of interests, such that they are situated vis-à-vis the
property in the same way with respect to time, interest, title, and possession. - Tenancy in common - Women tend to take their husbands name, but this is not always the case/was not always required by law Caregiving CB 205-206; 211-224; materials on family leave in the United States and elsewhere
Tort and criminal law implications of marriage Litigation and eviden
tiary privileges CB 270-277
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Intimate partner violence CB 252-269; in-class video on Lenahan v. USA ___________________________________________________________________________________ The court says that marriage comes with rights and obligations which are gender based. This putative
contract (where the wife pays the husband) reverses the roles, which cannot be done. Wife was in prison and couldn't pay certain expenses. Billor’s tried to get the money from the husband. Doctrine of necessities only applies to husbands – it is their obligation to the wife. Court says the gender
bias is unconstitutional.
___________________________________________________________________________________
Lady killed her rival. When are lies white lies? When are lies too big? Domestic violence: - There was a movement away from a permissive attitude toward wife beating in the 1970s. - The married women's property act (second half of the 19th century) helped move women's role forward
in marriages. - Battering and marital rape were criminal acts in the 1960s. - Different types of restraining orders Castle rock case: - Divorced husband and wife. Wife has a restraining order against the husband. The restraining order is supposed to protect her and her children. Husband kidnapped their three daughters. Wife calls the cops multiple times. Cops keep telling her to wait it out. At one point the cops say “oh the kids are fine, they are with their father.” Husband tries shooting up the police station. The police shoot back. The police then shot the husband and found the three daughters dead in the car. The police’s inaction was egregious despite the wife having the restraining order. - In failing to enforce the restraining order pursuant to the language on the paper itself, did the police violate her due process rights? - Wife doesn't have a substantive due process violation claim, even though the police failed on multiple levels, because of Deshaney?? Unless there is state involvement, where they are under
the supervision of the state and then fail to take action, then the state doesn't have a duty to protect said individuals. Background cases: - NY state vs rifle association: the government has to justify restriction on the right to bear arms by
being in line with the historical right to bear arms. There must be a reference to historical practices.
Bf had a civil protective order that prohibited him from having a firearm. Police found firearms in his
home. Bf was charged with a criminal offense for violating the protective order. - Tracy thurman v. city of thorington??: Thurman suffered regular violence from her husband.
Police would ignore her pleas for help. She got a restraining order. Police refused to enforce the
restraining order. Police showed up very late after her husband stabbed her, causing permanent
brain violence. She sued the police, claiming that other victims of crime were treated better than
victims of intimate partner violence. She won and law enforcement policy changed big time.
Why would a statute preventing someone with a domestic violence restraining order violate someone's constitutional rights? Husband is saying this is restricting his right to personal relationships with his wife.
The court said the right to live with his family is important and probably fundamental to the husband, so this statute needs careful scrutiny. The statute should not make the husband an ongoing threat, especially if the wife does not perceive him this way. The state was concerned that the wife was okay with this because of the cyclical nature of domestic violence.
- Constructive abandonment or dissertation Wife verbally abused husband was the main indignity and blamed husband for not having a daughter. The
wife said this was because she was suffering from MS. This illness was the real reason that the husband had a problem with the wife. The court says illness is not grounds for divorce. Even if there were indignities, these were effectively provoked by the husband’s terrible behavior. Ricketts case: - Is there enough evidence that wife deserted husband by forcing him out of the bedroom? Court said
that refusing sex is a desertion of the marriage if there is no good reason for it.
___________________________________________________________________________________ Dissolution and Divorce: - Non-material relationship dissolution: - Benscotter v. Benscotter: - Husband filed a complaint in divorce on the ground of indignities to the person. You can’t now discard your wife because you're unhappy that she became ill with
multiple sclerosis. - Rankin v. Rankin: ___________________________________________________________________________________ Fulten v. Fulten: Three main incidents she claimed constituted cruelty, one instance was before the marriage, one was during the marriage, one was during the separation. The court says that this is enough to constitute cruelty under the statute. The more severe a given incident is the more it is likely to suffice. Husband accepted wife back into the marital home and resumed sexual relations. Why can't the husband qualify for a fault based divorce? The court says you cannot back track on saying you forgive someone as
a reason for divorce. Husband stayed married to wife voluntarily after she cheated, so he cannot use this as grounds for a fault based divorce. Gilmartin: wife filed for divorce and alleged two grounds for the fault of her husband: illicit sexual behavior and indignity. Husband was addicted to porn. Husband sent wifes nude pictures to others. Husband had affairs (which happened years and years before the couple separated). The definition of illicit sexual behavior under this state's rules limited illicit sexual behavior to having affairs. Wife won the
divorce. The Husband challenges the fault based divorce, because she forgave him for the affairs. The court then finds that the wifes taking the husband back forgave the behaviors, but deception about the extensive porn addiction was a hidden indignity because the husband tried to keep that a secret from his wife. Each ground of alleged marital fault must have been specifically taken back and forgiven to take a divorce off the table.
Fault-based divorce: - Trapped people in marriages - Encouraged litigious divorce
No fault divorce: - This is accepted most everywhere today - There was a concern that divorce should not be made too easy Derosa v. Deroshea: wife says she doesn't love her husband anymore and wants a divorce. Husband doesn't want a divorce. Under NH no-fault divorce, you need irreconcilable difference/an unfixable marriage. The subjective state of mind of the parties (the wife is persistent about the divorce, there was an
actual separation which has lasted 2.5 years,) is sufficient for the court to say that the marriage has broken
down. Grounds for divorce: - Adultery - Bad behavior - Certain amounts of separation - Abandonment for certain amounts of time - … Missourie said one of the grounds for divorce needs to be satisfied to get a divorce. Husband and wife married in india. Husband came to the US for graduate school. Wife couldn't get a VISA. so they were living apart. Husband wanted a divorce, the wife did not want a divorce. The court
said there was not an intent to get a divorce at the beginning of the separation. Problems on page 309/310: Access to divorce: Boddie v. Connecticut case: - The state monopolizes the only means to get rid of a marriage, and this is a due process violation. The fees necessary to get into divorce court is unfair. Splitting up property: - Identification - Characterization/classification - Valuation – how much is it worth? - Distribution – who gets what? (who contributed) ___________________________________________________________________________________ In western states, all property acquired is jointly owned. Upon divorce, property is either divided equally
or equitably. Ferguson v. Ferguson: MS the last jurisdiction to have a title based approach for property upon divorce.
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- Identification of “propaganda” - Validation
- Classification/characterization The faults that are relevant to fault based divorce are not the same information considered in regards to
the separation of property, except contribution. If you can’t prove whose property it is, it becomes marital property. Arnon v. Arnon: husband was the primary wage earner. Wife stayed at home with the children. Towards the end of the marriage, she worked as a teacher, and started her own business (college prep) but did not make much money. The couple lived in a house in Michigan, but the husband spent most of his time in Virginia. West Virginia decides what property is marital property/how things should be divided by the statutory code. When there is no marital agreement, the court must distribute property evenly. The court can make changes depending on the extent to which the parties maintained the property, increased property value, increased income ability, and how the parties conduct depreciated the property. This court
says that although the earnings were different, homemaking is equally important as working. Husband says how does wife contribute to monetary success when she is never with the husband? He says that she just took care of the house, and they were practically living apart for a very long time. Gary Win v. wife: Another case about a well educated couple was the first to describe the wife's role as a job – holding meetings, entertaining, networking, raising children, was all labor that should be valued just
like the labor that he put into the development of their assets. This wasn't just a divorce between two rich people, this was about how wives are treated by their ex-spouse and by the government/courts. Gnall case: couple was married 15 years. Husband made mad money. Wife took care of the 3 kids. Wife had an education and earning capacity. Trial court said they both had at least 23 years of employment left, so she was awarded temporary alimony. The adjustment of lifestyle needs ___________________________________________________________________________________ Pim case: former husband was seeking to modify his alimony obligations because he wanted to retire.
They had been married for 29 years. He wanted to know that he could retire and modify his spousal support obligations. ___________________________________________________________________________________ Review: this is about the privatization of care. This dynamic is in spousal support, child support, and other areas. Family’s take many forms these days. It’s hard to speak of an average American family these days. What counts as a family itself is a feature of law. There are increasingly more efforts to realize the functional ability of families. If the purpose of law seems legitimate, there are ways for the law to have a restrictive definition of family. This is not allowed if the purpose is for an illegitimate reason. Marriage was argued to be able to accommodate same sex partners and still be recognizable as a marriage
under the law.
Race, class, ethnicity. Justice O'Connor in …?? In recent decades, low income and black people are less likely to enter into traditional families and are the most likely to experience governmental intervention. We have also seen this negative liberty interest of being free from governmental intrusion after dobbs, lawrence, griswald, eisenstadt. Also involved were problems of substantial due process, and equal protection. InDobbs, there was a wack claim that a right is only of real significance if it is deeply rooted in the nations history and tradition. There also is a freedom or a right to government not being intrusive: like in marriage rights. Like in the cases of loving, obergtedfell, turner, people wanted access to marriage and the state had put insurmountable obstacles in front of the petitioners. Once in a marriage, then privacy
norms govern. Courts don't like intervening into an intact marriage. There is a tension between embracing
brightline rules and indeterminate standards vs. other determinations like the best interest of the child for child support. The status, rights, and duties of families can change substantially if you move jurisdictions. Have a sense of the cases we have discussed and read about. Have a grasp of the fact that there are alternatives to certain laws (like alimony). Sometimes the act offers a uniform approach, so be aware of that. In any given fact pattern apply the law of the rule and also think about relevant cases that apply. Acknowledge that those cases probably arose in different jurisdictions. Read the question carefully. Play
the role that is asked of you. Answer the question. Practice Exam question 1: - Talk about the difference between bright line and discretionary rules. The existing law is highly discretionary. As long as a court considers relevant factors, as existing law states, then the court has a lot of discretion. The proposed law says the burden is on the child's opposing parent (in equal custody case) to prove that child custody is a bad choice. Additionally, the parent has to prove that the other parent is wrong by meeting certain standards. If this proposal replaces the statute above, that would be bad. Paired with the old provision, this is a great blanket coverage of best interest of the child. This new proposed law would require proof that one parent is not a good
parent in general. The new proposal means that there is an entirely new way of determining whether a parent is unsuitable. The word “suitable” opens up a spectrum of questions about what makes a good parent. - You could also argue that the new proposal excludes the child whereas the other proposal did not. There is no provision here that takes account of the wishes of the child. Practice Exam question 3: - Man was a stay at home spouse, he was happy, until he noticed that the wife was distant and wanted to be separated. Then he was desperately lonely. Couples therapy didn’t work out. She already has half a mill in her 401k. Man has a small amount of money in his bank account. Learn
what the rule is on spousal support. - Answer: imagine that this guy is truly your client and inhabit the role. What are this man's options? She can divorce him without his consent, because this area has no-fault, but since he stayed home, alimony might be a good place to start. A prenup was signed before the wedding. This would not be enforceable. She is the one with the wealth, so he could argue that equitable distribution isn't just limited to marital property but any property acquired through the marriage.
Maybe he could have negotiations with her in order to get the mulahh. This would not apply to
property distribution. Think about what would help the man land on his feet, recover
emotionally, recover financially, etc. - She just had 5 year old twins, husband wants the children after the separation. He should fight really
hard for joint custody and that this would be in their interest for the sake of stability. You might be concerned that he is leaning on the kids as an emotional crutch. Since the children have been living with him, he is capable of taking care of these kids. Help your client think about the children’s interests and needs. Also you can test the paternity question – maybe this is not his children, you might want to discourage him from going down this road. The law considers him a parent because he is married to the lady at the time of marriage – plus he wants to keep the kids. He could still establish. You could discuss whether a primary care presumption would exist (these
presumptions do not exist anymore).
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