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Domestic Relations
Charleston School of Law
Victor, Aurore

Domestic Relations Victor – Spring 2011


· 4 Roles of the DR attorney

o Advisor

o Advocate

o Negotiator

o Evaluator

· Duties to Client

o Competence = legal knowledge, skill & preparation

o Diligence

o Inform the client

o Communicate with the client

§ Note: May not communicate (directly or indirectly) with other party if represented

o Do not engage in dishonest conduct or fraud

· Do not represent both husband and wife in a divorce (conflict of interest).

· Obligation of zealous representation overruled by obligation not to harm a child.

· Unethical to charge contingent fees in domestic relations cases contingent upon securing of divorce upon the amount of alimony or support, or property settlement in lieu thereof.

II. FAMILY (nuclear family = husband, wife & children)

· Spectrum of Changing Family Unit: Traditional and Non-traditional on Both ends

v Traditional – Doctrine of exclusivity

0 Ideally it is Two parents of the opposite sex that are married

0 Phrased in the language of interest and rights/ parents or strangers

0 Stability; Authority figure

0 Based on Biology and Marital Relationship.

v Non-traditional – doctrine of inclusivity. (post-modern)

0 Ideally more inclusive,

0 focus on caring relationships,

0 Idea that the law should respond to the social changes.

0 Length of relationships

A. Constitutional Framework:

a. Fundamental Right:

o If denied to Everyone = Due Process Problem

o If Denied to Some individuals but not all = Equal Protection Problem

o Strict Scrutiny applicable Standard

b. Due Process:

o 5th Am. – No person shall be deprived of life, liberty or property w/o due process of law.

o 14th Am. – Due Process applied to the states

o Substantive Due Process:

· Focuses on government’s ability to infringe on a person’s due process rights.

· Due process includes the right to marry and procreate.

· Question: How do you determine what the due process rights are?

1. Is there a fundamental right?

§ Fundamental right, a right that is deeply rooted in this nation’s history. Encompass the concept of liberty.

§ Strict Scrutiny: A compelling government interest and the means chosen to meet the compelling interest is narrowly tailored.

2. If it is not a fundamental right you have a rational basis level of scrutiny.

§ Rational basis standard: A compelling government interest that is reasonably/rationally related to the government’s interest.

o Procedural Due Process:

· Procedures on how a government can infringe on a individuals rights.

· Does a person have an interest in life, liberty or property?

0 If so, what process is due?

0 Notice, opportunity to be heard, right to attorney, length of hearing, confront accusers, standard of proof that applies.

c. Equal Protection:

o 14th Amendment

o 3 Part Test:

1. What is the Classification?

2. What Level of Scrutiny?

3. Has Government Met applicable Standard?

o Classifications:

· Suspect classification = Strict Scrutiny

0 Based on race, National Origin, or Alienage

· Fundamental Right = Strict Scrutiny

0 Right to Marriage, etc.

· Quasi Suspect Classification = Intermediate Level of Scrutiny

0 Based on Gender or child Legitimacy.

· Non-suspect Classification = Rational Basis Test

0 economic classification, sexual orientation, All others


Level of Scrutiny

Government Interest

Means Chosen


Strict Scrutiny


Narrowly Tailored


Intermediate Scrutiny


Substantially Related


Rational Basis


Rationally Related

o Standard of Review:

1. Strict Scrutiny: (Highest Level of Scrutiny)

§ Law upheld if it is Necessary to achieve a Compelling government purpose.

§ Difficult Test, so a law examined under this standard will often be invalidated – especially if there’s a less Burdensome alternative to achieve government’s goal.

§ Narrowly Tailored Analysis: Is the standard the least restrictive option to achieve the legitimate goal?

2. Intermediate Scrutiny:

§ Law upheld if it is Substantially Related to an Important government purpose.

3. Rational Basis: (Lowest Level of Scrutiny)

§ Law upheld if it is Rationally Related to a Legitimate government purpose.

§ Very easy standard to meet; therefore law usually valid – Unless arbitrary/irrational

o Proving Discriminatory Classification:

· For Strict and Intermediate Scrutiny to apply there must be INTENT on the part of the government to discriminate.

· Intent is shown by:

1. A law that is Discriminatory on its face;

2. A discriminatory application of a facially neutral law; or

3. A discriminatory motive behind the law.

0 Motive shown by evidence of history of discrimination.

· When looking to laws that don’t exclusively discriminate based on race or gender; look to whether law has Discriminatory Intent & Discriminatory Impact


A. Restrictions on Who May Marry:

1) Constitutionality of Marriage Restrictions:

o Former bans on marriage that are no longer upheld: interracial marriages, marriage with people with disease, people who cannot or do not pay their child support

· Loving v. Virginia: (Fundamental Right to Marriage)

o Black woman married white man; arrested and pled guilty to

state statute regulating marriages involving minors must be rationally related to a legitimate state interest.

· The protection of minors from immature decision-making and preventing unstable marriages is a legitimate State interest.

· Redhail distinguished b/c this case is dealing with minors who need protection.

· Balance State’s rights with Parent’s Rights to raise their children.

· Polygamy:

o Bronson v. Swensen: Right to privacy & other individual constitutional rights do not protect polygamist marriage.

· ∏’s attempted to use Lawrence v. Texas, but Court rejected; The prohibition of plural marriages by a state does not infringe upon the private sexual conduct of consenting adults, but rather on the issuance of marriage license by the state.

· Same-Sex marriage:

o Goodridge v. Department of Pub. Health: Using a rational basis test the Mass. Supreme court found that the Mass. Statute prohibiting same-sex marriage violated the Equal protection Clause of the Mass. Constitution. (Domestic Partnership ≠ Marriage)

· Domestic Partnerships creates 2nd class citizens, and the Mass. Constitution prohibits unequal treatment, therefore may not deny the protections, benefits, and obligations of civil marriage to same sex couples wishing to marry.

· Just as in Loving, the singling out of a trait, such as sexual orientation, to prevent access to marriage reveals invidious discrimination which cannot be allowed.

· Right to Marry means little when it doesn’t include right to marry person of one’s choice.

· Court used Rational basis test ; thus avoiding fundamental rights or a suspect class.

o Wilson v. Ake: US Const. doesn’t protect person’s right to enter into same-sex marriage

· ∏’s attempt to interpret the Full Faith and Credit Clause as requiring all states to recognized same-sex marriage because Mass. legalized same-sex marriage.

· Under DOMA, if same-sex marriage is against a states’ public policy, then that state is allowed to NOT recognize the marriage, thus not follow the FF&C clause.

· P argued strict scrutiny, but Ct. rejected argument, finding that this statute didn’t rise to that level because the fundamental right to marriage does not include same-sex marriage.

o In Re Marriage: Allowing civil-unions via statute, as opposed to same-sex marriage was held unconstitutional under Ca. constitution as violative of EQP b/c it created a second class citizen.