DOMESTIC RELATIONS NOTES:
-Family law is for the most part governed by the state;
-28% is closer to what the actual divorce rate is; NOT 50% (as book says)
-CLASS PARTICIPATION CAN SERIOUSLY AFFECT YOUR GRADE IN HERE
-Divorce Practice Handbook – good for practice of family law
Class 1: rd pgs 1-45:
Chapter 1: Marriage, Family, and Privacy in Contemporary America
-Nuclear families: traditional—two parents and children
Moore v. City of East Cleveland: East Cleveland’s housing ordinance had strict housing regulations that limited the makeup of who can live in certain households (limited which types of relatives could live with who pg 8). Petitioner had her grandsons & her sons and a cousin living in the same house and was prosecuted for criminal charges for violation of the applicable ordinance.
-Issue: Whether or not such constraints on familial living arrangements violated the DPC of the 14th Amendment?
-Holding: Yes they do; reversed.
-Analysis: Yoder, Meyer, Poe, Griswold, stand for the proposition that the DPC of the 14th Amendment creates a “family zone” that is based on our idea of the traditional family which requires heightened scrutiny when balanced against the state’s interest in the regulation. J. Harlan’s dissent in Poe: “Full scope of liberty protected by DPC of 14th is not limited by precise terms of the specific guarantees of the Constitution, rather it is a rational continuum which includes a freedom from all substantial arbitrary impositions and purposeless restraints.” The city’s interests of “overcrowding, minimizing traffic congestion, and added costs to the school systems are not sufficient justification for ordinance at issue.
Poe v. Ullman: denied yet another attempt to hold anti contraceptive laws unconstitutional. Dissent by Harlan is important b/c it shows important opening to the privacy debate. Can’t understand how due process would allow state to intrude into the most private of relationships—husband and wife. Argues that Constitution’s protection need not be limited to what is written, rather, its aim is to protect against arbitrary or wrongful intrusions or purposeless restraints of the State. Liberty gains content from the emanations of specific guarantees from experience with the requirements of a free society.
Griswold v. Connecticut: Connecticut law made it a crime to use “any drug, medicinal article or instrument for the purpose of preventing conception.” Appellants (Planned Parenthood employees) were charged as accessories to the crime for giving advice to married couples.
-Analysis: “Various guarantees create zones of privacy.” The Court discussed how the 1st, 3rd, 4th, 5th, 9th all create certain rights of privacy in the citizens. Held the law seeks to achieve its goal by having a maximum destructive impact upon the marital relationship and that law cannot stand in light of the principle that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. This law would allow police to intrude into the marital bedroom to search for contraceptives.
-Concurrence: 9th Amendment: “The enumeration in the Constitution, (of the Bill of Rights) of certain rights, shall not be construed to deny or disparage others retained by the people.” J. Goldberg found in this the protection of certain rights such as privacy of marital relationship from abridgment by the govt. even though not specifically mentioned in the Constitution. The 14th Amendment protects these rights from infringement by the state.
-Concurring: (J. White) Agrees with majority b/c law fail Rational-basis test. ‘I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual relationships.
-Dissenting: No fundamental right to privacy found in Constitution (originalist view). Argue for judicial restraint.
-Griswold only applied to reg
t have legal basis (one party has done something wrong) for getting divorce (adultery, abuse, );
-No-fault: anyone can do it but in SC have to wait one year before obtaining divorce; policy behind concept – make the process amicable
-two people separate and move out of state—each state has jurisdiction (generally chose, or try to, the most favorable state)—BUT if party moves to state w/ small waiting period, they still must establish residency before taking advantage of that states divorce statutes
-Family lawyers are in a new field which combines the elements of family law with property, commercial, business, tax and bankruptcy laws.
-2d most liberal alimony state—SC (behind CA)
-Least liberal alimony state—TX
HOWARD S. ERLAGER ARTICLE
-Divorce is by far the most emotionally draining area of their practice.
-Divorce is particularly evident when the decision to end the marriage is not mutual.
-If one party wants out of the marriage, the irretrievable breakdown requirement is met.
-Because of the emotional volatility of divorce proceedings, family lawyers can be exposed to some pretty ugly proceedings. Different than business because of the fairness aspect inherent in divorce that doesn’t just apply to business transactions; also, different than personal injury b/c the parties are personal to one another – even uglier when divorces are not mutual.
-More ethics complaints are filed against family lawyers than any other practice.
-High job satisfaction among family lawyers when compared with transaction lawyers (because of personal nature – helping families)
§2: Ethics in practice