FAMILY LAW SIGMAN SPRING 2013
I. FAMILY LAW: PAST AND PRESENT
A. REGULATING MARRIAGE AND DIVORCE
1. Government’s power to intercede with familial relationships
2. Maynard v. Hill (1888)àMarriage is a contract and civil status
a. Upheld state’s broad power over regulation of marital status
1. State holds parties to various obligations/liabilities
b. Legislative had power to dissolve marriage
B. STATE’S REFUSAL TO RECOGNIZE SISTER STATE JUDGMENTS
1. Individual states can intercede with familial relationships
2. Jackson v. Jackson (1804)àStates will protect their laws to ensure that people do not jump to another state to evade the laws of one state.
a. Marriage is valid everywhere UNLESS it violates public policy of another state, which had the most significant relationship to the spouses.
C. REMARRIAGE LIMITATIONS
1. State v. Snyder (1921)àOpposition to remarriage following divorce. a. Govt seeks to preserve and safeguard the sanctity of marriage b. Restricted remarriage after divorce to six months (and up to five years if at fault)àDoes not apply to remarriage of divorced parties.
D. BREACH OF PROMISE TO MARRY
1. MinorityàRecognized by North Carolina (“Heartbalm claim”)
2. MajorityàNo longer a recognized wrong
3. Elements of Breach to Marriage
a. Mutual promise to marry
b. Breach of the promise to marry
c. Without justification (i.e. legal defense)
4. Damages allowable resemble a tort action.
5. STATUTE OF LIMITATIONSà3 years
6. DEFENSES
a. Illegal consideration, i.e. promise made in exchange for sex
b. Marriage license NOT validly issued at time promises exchanged.
7. OWNERSHIP OF THE RING
a. North CarolinaàMarriage is a condition precedent to ring
1. Ring should go back to man (if he makes issue of it)
b. Other states àallow woman to keep ring if man breaches promise
E. ALIENATION OF AFFECTION & CRIMINAL CONVERSATIONà 52-13
1. ALIENATION OF AFFECTION
a. MinorityàRecognized by N.C. (“Heartbalm claim”)
(cant be brought against spouse, only third party)
b. Elements for Alienation of Affection
1. Marriage
2. Genuine Love and affection in marriage(just a lil required)
3. Wrongful/malicious acts (injurious to another) by D
4. Caused
5. The loss of love and affection
c. Third party would have to know of marriage
d. Either spouse can sue any third person outside marriage. e. To get punitive damagesàNeed aggravating circumstances (rub spouse’s nose in it OR open and notorious about affair)
f. Does not require sexual relations (interference can be any type)
g. Action cannot be brought if separated, i.e. not living together
1. Live separate and one party’s intention to not get back together
h. SOLà3 years from last act giving cause for action
2. CRIMINAL CONVERSATION
a. MinorityàRecognized by N.C. (“Heartbalm claim”)
b. A civil action for adultery against a spouse’s paramour
c. Elements for Criminal Conversation
1. Marriage between the spouses,
2. Voluntary sexual relationship b/w D & P’s spouse
3. That takes place during marriage.
d. If no direct evidence of adulteryà proved circumstantially 1. Must prove:
a. Inclination to commit adultery AND
b. Opportunity to commit adultery
e. SOLà 3 years from last act giving cause for action
f. Punitive damagesàProof of malice (knowledge may be enough)
3. If the parties are truly separatedàNo cause of action.
a. From date of marriage to date of separationàCause of action
b. After date of separationàNo cause of action
1. Cannot be cohabitating AND
2. Live separate & one party’s intention to not get back together ***Bit of a defenseàwhen separation date is unclear
4. Look to totality of the circumstances for BOTH claims
F. MARITAL TORTS-INTERSTATE
1. NC looks to the law of the state where the contract occurred
2. If defendant is a non-residentàdepends on a number of factors:
a. Minimum contacts? Long arm statute? Interest of the state?
II. MARRIAGE
A. CEREMONYà 51-1
1. Man and a woman
2. With legal capacity to marry
3. Who presently consents to take each other as husband and wife
4. Expressed in presence of each other
5. In presence of authorized person who declares them H and W, UNLESS a religious denomination or Indian Nation or Tribe recognizes a marriage without a ceremony
a. Ordained/authorized minister/magistrate (no “licensed” minister)
B. AGE REQUIREMENTS
1. Variance is significant, although nearly all require age of majorityà18
a. ExceptionsàIndividuals between 14 and below 18 for:
1. Parental consent; Pregnancy, OR Court permission.
2. N.C. 51-2
a. 18 years of older
b. 16-18 àwritten consent signed by a parent/guardian (1 is key) c. 14-16àFemale pregnant or gave birth and wants to marry putative (supposed) father OR Male putative father who wants to marry the mother.
1. CONSIDERATIONS
a. Requires court order after considering parents’ and appointed guardian ad litem’s views on the best interest of the minor
b. Court will only order it if in best interests of children
· NO: Same sex couples, common law marriage, proxy marriages (in NC)
3. ANALYSIS
a. Look to ageàIf under 18
1. Appropriate permission OR Pregnancy or child born
4. CONSTITUTIONAL ISSUES REGARDING AGE RESTRICTIONS
a. May age requirements differ by gender? No
b. A state MAY constitutionally impose age restrictions on marriage.
C. VOID AND VOIDABLE MARRIAGES RE: AGEàNC 51-3
1. VOIDàA nullity from its beginning, so can’t be ratified.
a. Void marriages are rareànot favorable
b. NCàMarriage followed by cohabitation & birth not void UNLESS bigamy
c. Can be challenged by ANYONE
d. Degree of Kinship
1. All states regulate consanguinityàmarriage between parent/child and brother/sisterà Void (N.C. àvoidable)
2. Doesn’t distinguish between half-blood or adopted relatives.
e. NO EQUITABLE DEFENSE
2. VOIDABLEàMarriage entered when at least one part
** Must satisfy each one. If any of these fail, still valid even if misrepresentation.
d. Incapable of contractingàunder 18
e. NCàMisrepresentation is generally not a basis for annulment
5. PRESUMPTION WHEN CHILD BORN TO MARRIED COUPLE
a. Putative (supposed) father, i.e. husband can refuse the blood test
b. Presumption àhusband is the father of the wife’s child
6. Annulment granted in NevadaàDid not know before marriage (1) Likes/dislikes; (2) Preference for children; and (3) Desires as to state residency. (Spears)
a. In NCàit would have turned out differently (she would have had to use her legal disability, i.e. she was drunk when she got married.
B. ENDING THE VOID MARRIAGE IN NC-BIGAMY
1. INHERITANCE DISPUTE B/W TWO “WIVES” a. Presumption usually resolves the case:
1. Second marriage presumed valid (strongest)
a. Person asserting invalidity must show:
1. 1st marriage didn’t end with death of spouse
2. 1st marriage didn’t end in divorce
***Hard to establish
2. First marriage valid (recognized, but weak)
3. Ceremonial marriage valid over common law
4. Death after 7-year unexplained absence
a. If spouse returns after 7 yearsàsecond marriage is void and the first marriage comes back to life.
2. For inheritance purposesàLook to second marriage
C. GROUNDS FOR DIVORCE
1. Jury often decides both the grounds and defenses as both are issues of fact
2. Definition: Formal ending of marriage, implying, entitlement to remarry.
3. North Carolina
a. Absolute divorce without proving fault
b. No defenses to absolute divorce available
c. Defenses available for bed and board divorce
d. NC does not have irreconcilable differences
e. Either spouse may file if lived in NC for six months
f Two ways to obtain a divorce
1. Absolute Divorceàability to remarry
a. Live separate and one year apart without intent to resume relationship by one party at time petition is filed
b. Incurable Insanity
1. Lived separate and apart for 3 years w/above 2. Two doctors as experts on incurable insanity nature; one must be a psychiatrist of one of the state’s four-year medical schools
2. Bed and board divorceàNo right to remarry
D. BED AND BOARD DIVORCE
1. DefinitionàJudicial decree that parties are legally separated; not divorced and not free to remarry (jury question)
2. Fault bases for Divorce from B&B (Clear and convincing evidence)
