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Domestic Relations
Charleston School of Law
Beckman, Sydney Aaron

Domestic Relations Outline
 
 
I. MARRIAGE, FAMILY AND PRIVACY IN CONTEMPORARY AMERICA
A. The American Family Today
–          Nuclear families comprised of married couples living w/their children now constitute less than a quarter of all American hhs.
1. Proponents of Change
–          In 1960 only 1 in 10 American women aged 25-29 was single. In 1998, nearly 40% of women in that age group were unmarried.
–          B/t 1970 and 1999 the number of unmarried couples living together in the US increased 7fold. When this began, most couples married if the woman got pregnant. But by the 90s, marriage was no longer the obvious response to pregnancy.
–          In 1960, 1 child in 20 was born to an unmarried woman. By the end of the century it was 1 in 3.
–          By 1998, the D rate was 26% lower than in 1979. Birthrates for unmarried white women stabilized in the 90s, and those of black and Hispanic women actually declined.
–          1/3 of female same-sex HHs and more than 1/5 of male same-sex HHs include biological children under 18. 8 U.S. sts and DC currently allow a child to have 2 legal mothers or fathers.
–          People who couldn’t become parents before now do so in many ways. Reproductive technologies are also used to avoid having children altogether.
2. Reservations about Change
– Daniel Cere: The Future of Family Law: Law and the Marriage Crisis in North America
–          Family law is headed in one or more of at least 4 troubling directions:
o   1) Equivalence b/t cohabitation and marriage – denies that some couples might intentionally choose not to marry; also stats show cohab is less stable and safe for children
o   2) Redefining marriage as a couple-centered bond – redefines marriage as a gender-neutral union; neutralizes law’s ability to say that kids need their Ms and Fs; says marriage is centered on the couple rather than the kids
o   3) Disestablishment, or the separation of marriage and state – denies the st’s legitimate interest in marriage as our most imp child-protecting social institution
o   4) Why just two? – gendered definition has been challenged; challenges to the two-person definition are sure to follow
–          Clashing Models of Marriage
o   1) The Conjugal View – marriage is a sexual union of H and W who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any kids; kid-centered
o   2) The Close Relationship Model – marriage is a private rel b/t 2 ppl created primarily to satisfy the needs of adults; not seen as intrinsically connected to kids; may free adults to live in the diverse family types they choose, but undermines the law’s historic role to seek to protect the b.i.o.c.
B. The Relationship Between Families and the Law
–          The majority of all family law is governed by St law
1. Public Law
–          The law affects the family in many dif ways (incldg – tax, bankruptcy, education, regulation of the formation/dissolution of the family as a legal unit). By deciding what groups constitute a family, the law has a significant impact on the benefits of dif familial structures.
– Moore v. City of East Cleveland
o   Cleveland ordinance limited occupancy of dwelling to members of a single family; defined family as only a few categories of relatives; Moore lived w/her son and 2 grandsons and was ordered to remove one of the boys and when she failed to do so, the city filed chgs
o   Such ordinances must bear a rational rel to permissible st objectives. The Due Process Clause of the 14th Amdmt incorporates the 1st Amdmt freedom of association and right to privacy. The protection of the “sanctity of the family” guaranteed by the U.S. Const extends beyond the nuclear family to the extended family
2. The Evolution of the Right to Privacy
– Griswold v. Connecticut
o   Conn law prohibited use of contraceptives; Sup Ct recognized right to privacy protected by Const (claims that right is found in “penumbra” of rights; the 9th A and the 14th Due Process Clause)
– Eisenstadt v. Baird
o   Mass law said only married couples could obtain contraceptives & only registered drs or pharmacists could provide them; Baird gave away some to woman; Ct struck down law but not on privacy grounds – said distinction b/t married and single didn’t satisfy “rational basis test” of 14th A.
o   J Brennan – “If the right of privacy means anything, it is the right of the individ, married or single, to be free from unwarranted govtal intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child.”
3. Contemporary Understandings of Privacy
– Lawrence v. Texas
o   TX law prohibited persons of the same sex from engaging in “deviate sexual intercourse”; Individuals are entitled to constl protection, under the DP Cl, in their personal lives for sexual privacy. Sts cant minimize or control their destiny by criminalizing private sexual conduct. Expanded right of privacy to individuals based on a broadening conception of family.
 
 
II. PRACTICING CONTEMPORARY FAMILY LAW
A. The Status and Conditions of Family Law Practice
–          Family law is very emotionally driven; D is 99% psychotherapy, 1% law
–          Role of the Lawyer:
o   Mediator – facilitator, try and bring ppl to the same pg and encourage voluntary settlemt
o   Arbitrator – makes a decision, 3d pty decision-maker appointed by the parties to reach resolution
o   Collaborative Lawyer – similar to mediation in that parties are attempting to work together to reach a solution except you agree not to go to trial
o   Guardian Ad Litem – represents the best interest of the child; makes recommendations based thereon
o   Parent Educator – atty instructing divorcing parents in a classroom setting on post-divorce matters involving visitation and custody
o   Parent Coordinator – both statutory terms in some states, these are person’s designated to facilitate visitation
o   Counselor – not just at law; you do a lot of handholding
B. Ethics in Family Law Practice
1. Ethical Foundations
–          Ethical Obligations of Family Lawyers
o   Competence – knowledge of lots of different areas of law (contract, tax, personal injury, property, criminal, etc.)
o   Diligence – have to be willing to get where you want to go, must be thorough
o   Informing the Client – must let client know what’s going on
o   Communicating with the Client – must communicate with the client to know what their needs are
o   Fraud – obvi don’t defraud your clients
–          Majority of all ethics complaints involve family law attorneys. Many malpractice complaints involve family law attorneys.
2. Conflicts of Interest
–          Contingent fees in a D case aren’t permitted, although some sts don’t necessarily prohibit them. If the ptys want to get Ded and then decide to reconcile, it doesn’t work – it could put the lawyer at odds w/the client for financial reasons. And the legal system looks to foster reconciliation
–          Contingent fees in family law other than D are: it depends. Some sts allow post-judgmt dollars to be modified, in those cases you couldn’t have contingent fee b/c certain things would be against your interest.
–          Contingent fees in family law collection are generally

sidence, income or occupation) under “rational basis test” (must show law bears no rational rel to legitimate public interest)
–          So do you have a fundamental right to marry? Ct recognizes the fundamental freedom to marry, subjecting restrictions thereon to heightened scrutiny.
– Zablocki v. Redhail
o   Sup Ct held that WI statute denying Redhail right to remarry b/c he hadn’t paid child support, violated EP and DP rights b/c it interfered w/right to marry.
B. Same-Sex Marriage?
–          Until 2004, no st permitted couples of the same sex to marry
– Goodridge v. Dept of Public Health
o   Mass denied same-sex couples marriage licenses. Ct only applied rational basis test and said it was ok. The st may want to prohibit this b/c of child welfare, tax consequences, departure from tradition, religious beliefs, conservation of resources (st and private financial), and health concerns.
–          The argument against the st interest in raising a child in an optimal setting is that there is no evidence showing that a child will not be in a more stable setting just b/c they have straight parents. The argument doesn’t hold water when you consider the fact that lots of nontraditional family settings are allowed (children living w/grandparents, aunts/uncles, adoptive parents, single parents, etc.). The conservation of resources is not a stable argument either b/c regardless of what type of household the child is in, it will still need what it needs.
–          Fed govt passed DOMA (Defense of Marriage Act) statute which has 2 pieces
o   1st – effectively says same-sex couples won’t get any benefits if married; it is a st right to confer
o   2nd – says no st has to recognize a same-sex marriage from another st; Mass gay couple moves to S.C., files for D, it’d be dismissed as not a valid claim – or if one dies, the spouse has no right to the prop)
–          Relevant S.C. Statutes
o   § 20-1-10: Persons who may contract matrimony
§ All persons may contract matrimony except mentally incompetent persons and “no man shall marry his mother, grandmother, sister, etc.” (mirror for women.
§ These denied categories, such as mother, grandmother, etc. offend the senses. If it were 80 years ago, we would feel the same way about interracial couples.
§ A violation of a (and this) prohibition means the marriage is voidable, not void. So the marriage is valid but voidable.
§ So what about same-sex marriages?
§ § 20-1-15: Prohibition of same-sex marriage. “A marriage b/t persons of the same sex is void ab initio and against the public policy of this State.” Therefore, a same-sex couple marriage is void.
o   If you marry within one of these prohibitions, it’s a valid marriage up until it is declared void. If a party dies while married w/in one of these violations, they get the benefits of a spouse. You have to be a party to the marriage to challenge the validity of it.