Family Law
Prof. Fred Hicks
Spring 2010
Charlotte School of Law
Book – Leslie J. Harris, Lee E. Teitelbaum, June Carbone, Family Law (3d ed. 2005)
This outline is organized by class date, which includes reading assignment, case notes, prof. comments and statute
***1-11-2010 pp3-18***
-Marriage and Family: Introduction
1) “Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation” p. 3
a) Research suggests that cohabitation has become less of a prelude to marriage than an alternative to it
b) Legal trend towards identical recognition of cohabitation and marriage
c) As the rates of cohabitation increase, the question becomes: should American law more explicitly “institutionalize” cohabitation by ending the different treatment of marital and Nonmarital relationships
i) Yes:
(1) Marriage and cohabitation involve substantially the same attitudes and orientation
(2) They claim they differ from married couples only in the willingness to go through with the formal procedure
ii) No:
(1) If marriage is losing favor b/c it meets the needs of fewer people, then the state should not try artificially to prop it up
(2) Cohabitation’s growth reflects the great prominence of the ideals of individual autonomy and privacy in intimate matters
(3) Good reasons for the law to promote marriage
2) “Why Marriage?” p. 6
a) We need families, not marriages, for society to function
b) The caretaker-dependent relationship is more important
i) We should focus on nurturing the parent-child relationship
3) “The Bounds of Matrimony and the Bonds of Constitutional Democracy” p. 7
a) Marriage is the best, most promising foundation for lasting, growing, individual, and family happiness and security
i) Society has an interest in promoting it
ii) Home is the first and most important schoolhouse in a democracy
b) To abolish marriage or legalize same sex marriage would radically change the domestic habits of Americans and inevitably lead to a radical variation of our constitutional gov’t
i) Marriage is the seedbed of gov’t
4) “The Family Paradigm of Inheritance Law” p. 10
a) Extended care systems = support networks beyond the immediate family
i) Important in ethnic and cultural minorities
ii) Family paradigm ignores these arrangements
(1) Deprives many important family groups of property laws like inheritance etc….
Hewitt v. Hewitt p. 10Hewitt v. Hewitt (1979) p 10<!DOCTYPE HTML PUBLIC “-//W3C//DTD HTML 4.0 Transitional//EN”>
Statement of Case:
P: female cohabitant
D: male cohabitant
Facts:
P initially filed for divorce from D. However, P later admitted that no marriage ceremony had taken place and that no marriage license was ever obtained. P and D lived together from 190 to 1975 and had 3 children together. P alleged that she was entitled in equity to one-half share of D’s property due to a promise made by D, that their conduct evinced an implied K entitling her to ½ of the property accumulated during the relationship, that D’s property should be impressed with a trust for P’s benefit, and that P detrimentally relied on D’s promises.
Procedure:
TC dismissed the complaint, finding that such claims must be based on a valid marriage. CA reversed for P
Issue:
May an unmarried cohabitant recover an equal share of the profits and properties accumulated during the period of cohabitation?
Holding:
No.
Reasons (doctrinal and policy):
An unmarried cohabitant may not recover an equal share of the profits and properties accumulated by the unmarried cohabitants during the period of cohabitation. These claims are unenforceable as contrary to public policy. The IL Marriage and Dissolution of Marriage Act does not favor granting mutually enforceable property rights btw. unmarried cohabitants may undermine the Act’s policy of strengthening and preserving the integrity of marriage. The couple here would have had a valid common law marriage had such marriages not been abolished in 1905.
Result on Appeal:
Reversed for D.
b) Notes:
i) In most states in the US today P would be able to state a claim against D for common law marriage or, where common law marriage is not permitted, based upon K or equity theories (that the Hewitt court rejected)
Braschi v. Stahl Associates p. 13Braschi v. Stahl Associates Co. (1989) p. 13<!DOCTYPE HTML PUBLIC “-//W3C//DTD HTML 4.0 Transitional//EN”>
Statement of Case:
P: cohabitant
D: landlord
Facts:
P lived with Blanchard in a rent-controlled apartment from 1975 until Blanchard’s death in 1986. In 1986, Stahl Associates Company (D), which owned the apartment, notified P that P had no right to occupy the apartment, since Blanchard was the only tenant of record. P filed suit, seeking a permanent injunction and declaration of entitlement to occupy the apartment.
P then moved for a preliminary injunction to enjoin D from evicting him until a CT could determine whether or not P was a member of Blanchard’s family under NY rent control statute. The SCNY examined the relationship of the 2 men and determined that P was a family member. The appellate division reversed, concluding that the statute only provided protection from eviction for family members within a traditional and legally recognized familial relationship.
Procedure:
TC found that P was a family member; CA reversed; P appealed
Issue:
May unmarried cohabitants of the same sex be found to be members of each other’s family?
Holding:
Yes.
Reasons (doctrinal and policy):
Unmarried cohabitants of the same sex may be found to be members of each other’s family. Family should not be strictly restricted to formalized relationships. The term should include two adults who were lifetime partners tied together both emotionally and financially. P should be given an opportunity to prove this type of relationship with Blanchard.
Such a definition of family would be consistent with the purposes of rent control laws, i.e. protection of individuals from dislocation and a gradual transition of rent control apartments to a free market system. A CT may conclude that P and Blanchard were more than roommates, since they regarded each other and were regarded by friends and family as spouses, they were financially tied together, and P was named beneficiary of Blanchard’s insurance policy and primary legatee and co-executor of Blanchard’s estate.
Result on Appeal:
Reversed for determination of P’s status.
***1-14-2010 pp 345-376***
***1-21-2010 pp 31-49***
***1-25-2010 pp 63-67, 76-82***
***1-28-2010 pp 98-103, 107-112***
***2-1-2010 pp. 113-26, 130-137, 137-140***
***2-4-2010 pp 155-158, 176-184***
-Marriage and It’s Limits p. 155
1) Intro:
a) Requirements for getting married:
i) Parties must agree to marry
ii) Parties must be competent
iii) Parties must be eligible to marry
iv) Parties must go through whatever forms are required for marriage in the state where they intend to marry
2) Formalities: UMDA p. 156
a) To get a marriage license
i) Must sign form and provide:
(1) Proof of age
(2) Proof that the marriage is not prohibited
(3) Certificate of the results of any medical examination required by the laws of the state
ii) At least one party must appear and be solemnized by a judge or public official or religious leader
3) Notes:
a) Ceremony is generally required in all states that do not recognize common law marriage (but the form of ceremony is rarely specified)
b) License requirement is generally mandatory
4) Void and Voidable Marriages p. 157
a) Void = annulled; never took place
i) Can be initated by either party or a third party
b) Voidable = potential to be valid
i) Can be sought be one party
ii) Underage; can be valid once both reach majority and neither objects
5) The Agreement to Marry p. 158
a) The Content of the Agreement
Lutwak v. US p. 158Lutwak v. US (1952) p. 158<!DOCTYPE HTML PUBLIC “-//W3C//DTD HTML 4.0 Transitional//EN”>
Statement of Case:
P: corporations
D: federal gov’t
Facts:
Lutwak, Munio, and Treitler (Ds) were convicted of conspiracy to defraud the US (P) by obtaining illegal entry into the US of 3 aliens as spouses of honorably discharged veterans. Alien spouses of honorably discharged veterans were allowed entry into the US under the War Brides Act.
The first count of the indictment charged that there was a conspiracy to have 3 honorably discharged veterans go to Paris and marry 3 women. The spouses were then to seek entry into the US under the War Brides Act.
Each couple went through a marriage ceremony but the marriages were not consummated. None of the parties lived together and each couple separated after entering the US. Ds ar
ly practiced and lived within the rules of Catholicism. D’s religion prohibited the marriage to a divorced person whose former spouse was still alive. This marriage would not have taken place but for P’s fraud. Therefore, the fraud went to the essentials of the marital relationship and has made it impossible for D to continue to perform the obligations and duties of the marriage. D was entitled to an annulment.
Result on
Affirmed for D.
i) Notes:
(1) Traditional Rule: restricts annulments for fraud to misrepresentations going to the essentials of marriage
d) Names:
i) The practice of a married woman assuming her husband’s name is a matter of custom rather than a legal requirement
ii) Legal process to change a name is not required; one may change one’s name by usage or not
6) Substantive Restrictions on Marrying p. 176
a) The Constitutional Framework
Zablocki v. Redhail p 176Zablocki v. Redhail (1978) p. 176<!DOCTYPE HTML PUBLIC “-//W3C//DTD HTML 4.0 Transitional//EN”>
Statement of Case:
P: license applicant
D: county clerk
Facts:
WI enacted a statute requiring residents who had minor children not in their custody, and who had an obligation to support their children by court order, to first obtain a court order granting permission to marry before entering into marriage. Court permission was not to be granted if the marriage applicant had not complied with the support obligation and when the child was, or was likely to become, a public charge.
In 1972, P had a paternity action brought against him and admitted paternity to a child born out of wedlock. The CT ordered P to make monthly child support payments until the child was 18. In 1974, P applied for a marriage license with D, the county clerk. D denied the application based on the WI statute requiring P to first obtain a court order granting permission to marry.
P owed 3.7k in back child support payments and the child had been a public charge since birth. P filed a complaint in TC on his own behalf and on behalf of the class of all WI residents who had been refused marriage licenses under the same stattue. D argued that the permission-to-marry proceedings allowed the applicants to be counseled on fulfilling their prior support obligations and that the welfare of the out-of-custody child was being protected. FTC found the WI statute unconstitutional.
Procedure:
TC found WI statute unconstitutional
Issue:
May reasonable regulations that do not significantly interfere with the ability to enter into marriage be imposed?
Holding:
Yes.
Reasons (doctrinal and policy):
There is a fundamental right to marry under the DP clause of the 14th. If a statutory classification significantly interferes with the exercise of a fundamental right, then it cannot be upheld unless it is supported by sufficient important state interests and is closely tailored to effectuate only those interests.
In this case, there was no evidence of counseling and no justification for withholding court permission to marry once counseling was theoretically completed. The welfare of out-of-custody children is also not a persuasive argument for the statute, since there are other means of compliance for support obligations. While these are legitimate state interests, they unnecessarily impinge on the fundamental right to marry. WI statute is unconstitutional.
