Family Law Outline

Family Law – Spring 2012, Sonya Garza

OUTLINE OF CHAPTERS:

· Constitutional cases and protections for the family and its members *Chap 1*

o Think about how both courts and legislatures define the family

· Today v the past

§ 1974 Village of Belle Terre Defined Family as “one or more persons related by blood, adoption, or marriage, living or cooking together as a single housekeeping unit, exclusive of household servants. A number of persons, but not exceeding 2 living and cooking together as a single household unit though not related by blood, marriage, or adoption shall be deemed to constitute a family”

§ Bowers 1986- saw no connection between “family, marriage, or procreation on the one hand and homosexual behavior on the other”

o Why did supreme court decide to take this particular case?

o How the SC definition of privacy has affected the definition of a family

o Both societal and legal definitions of the family

o The limits of privacy

o When privacy rights conflict (i.e. in custody fights with care custody and control)

· Getting Married *chap 2*

o Understand const right to getting married (Loving v VA then Zablocki case came along)- Basic civil rights of man – Loving , the const. does not specifically say the freedom to marry but implied in “liberty” – Zablocki

o When there is a significant interference with the right to marriage it will most likely be struck down

o Know substantive and procedural regulations on marriage (marriage licenses, bigamy, polygamy, etc. )

· Being married Chap 3

o Roles and responsibilities in marriage

o Gender differentials

o Know that courts are hesitant to step into intact marriages

· Criminal law

o Torts still recognized between spouses, why some aren’t recognized, and how we recognize them in different ways today

· Interspousal immunity – precluded interspousal tort claims. Now this doctrine is abrogated in most states for intentional and negligence

· STDs- extend interspousal liability –

§ Negligence, battery, fraudulent misrepresentation, and IIED

§ Some states impose criminal liability for the transmission of HIV or AIDS (CA, FL)

· No spousal immunity under federal law

· Marital rape

o Torts against 3rd parties – know the test

· Alienation of affection

Wrongful conduct of defendant , loss of affection or consortium, a causal connection between the wrongful conduct and the loss of affection or consortium

· Criminal conversion

Requires sexual intercourse

· Still have theses because formerly the wife was viewed as her husbands property

· Alternative families- chap 4

o Know US Supreme court cases and how the recognize extended families and communal living arrangements

· Cohabitation

o Cohabitation has increased – understand why its not recognized by the courts and common law marriages are the minority rule and why

· The courts don’t want to undermine the institution of marriage.

o Any legal rights given to nontraditional families? Why does the court hesitate to create these legal rights?

· Marvin permits the recovery for cohabitants based on express agreements, and in the absence of , implied in fact and implied in law agreements

· NIED – courts are split on whether to permit such “sufficiently close relationship” for same-sex unmarried couples

· Justice Garibaldi- exclusion of cohabitants conforms to societal expectations regarding the differential treatment of spouses and is less likely to lead to confusion because spouses are treated differently in so many legal contexts

· Employee benefits are now starting to be awarded to same-sex partners

· Domestic violence

· Unmarried cohabitants cannot inherent from their partners by intestate succession

o What types of nontraditional families are more or less likely to be recognized by the govt – adoptive families, single parent families, extended families are more likely than cohabitants or same-sex families

· Chap 5 Divorce

o Know the intro (BONUS POINTS) for how divorce has changed throughout the years – fault to no fault

· Until 1857 England had a “divorceless society” – no court had the authority to grant divorce

· Henry VIII got a divorce but normal men weren’t allowed this privilege

· Very privileged men could try and get a bill out of Parliament

· 1800-1836- there were about 3 of these a year

· Annulment (very hard to get) or divorce from bed and board (legal separation which neither spouse could marry again)

· Colonial Period- South was faithful to English tradition

· New England – courts and legislature occasionally granted divorce

· Pennsylvania- Penn’s laws of 1692 – spouses could get a bill of divorce for adultery

· Later- governor or lieutenant governor could grant divorce based on adultery, incest, bigamy, or homosexuality – – but no evidence he ever used this power

· …- general assembly took power of divorce

· 1770’s – privy council disallowed legislative divorces in PA, NJ, NH

· After independence – south (divorce unusual) north (courtroom divorce became more normal than legislative divorce)

· South – legislatures passed private divorce laws , GA’s const of 1798 allowed legislative divorce on a 2/3 vote of each branch of the legislature- and after a “fair trial” and divorce decree in the Superior Court

· 1785- PA passed a general divorce law and Mass. Did a year later

· Every New England state had a divorce law before 1800 (along with NY NJ TN)

· NY 1787 law- only granted divorce on adultery

· Vermont 1789- grounds for divorce – impotence, adultery, intolerable severity, 3 years willful desertion, long absence with presumption of death

· RI -gross misbehavior and wickedness in either party, repugnant to and in violation of the marriage covenant.

· 19th century – divorce was rising, family was changing ,

· 1850 – legislative divorce abolished

· 1850-70- many states adopted liberal divorce laws

· After 1870 – tide turned- influential moral leaders – National Divorce Reform League –1882 CT divorce law repealed 1883- Maine’s law fell to a tougher one (6 month wait before divorce was absolute, 2 year ban on remarriage without court permission, the guilty party could never remarry)

· 1867-81- increased divorce rate despite stricter rules because they wanted their marriages death to be formally accepted

· Divorce rings began – 1900 Zeimer and Mason arrested for hiring young girls to get on the stand and lie about an affair with the husband

· 1990 Migratory divorce , Nevada was the place.

· Last part of 19