FAMILY LAW
I. Introduction – State Control of Family Law
Jackson v. Jackson: (1804) Both people lived in NY, though went to VT to get divorce. VT alimony decision, asked NY to recognize case in VT, even though NY didn’t allow general divorce. Ct refused, saying that she was not allowed to go to another state to get a divorce. NY Ct wanted to preserve the sanctity of marriage.
Maynard v. Hill: Husband runs off the OR, promising to come back for wife. He never shows up again. Land was newly settled and didn’t have organized ct system. OR grants divorce through legislative act and husband remarries, old wife doesn’t get any of land.
*One requirement for divorce is that other side must have notice. Wife didn’t have notice.
*Ct distinguishes marriage contract from other civil contract: Cannot add to or amend marriage contract, but can amend civil contract.
II. Marriage
Common Law Marriage: Only 11 states still recognize this! NC does not recognize! Public policy problems against common law marriage: no proof of how long they live together, etc., there’s no single date of beginning.
*Reasons for abolishing common law marriage: encourage people to get legal marriage, discouraging people from living together out of wedlock.
1. Elements
(a) Cohabitation
(b) Agreement to marry
(c) Must hold themselves out as being married.
(d) Other people in community think they’re married.
Stein v. Stein: Common law marriage between people in MO. MO has statute that doesn’t recognize common law marriage. Exchanged vows and rings while on trip in Philadelphia. PA has common law statute. Holding: Ct says same set of rules apply to all MO residents
Age Restrictions: Cannot get married below 14, under certain circumstances between 16 and 18.
B. N.C. Law:
G.S. Sections 51-1: (Requisites of Marriage; Solemnization) Just need consent of both parties AND some type of solemnization (before priest, jp, etc.) Just consent is not enough! No sexual consummation required.
-Must be solemnized by one of these three: (1) ordained minister; (2) minister authorized by church; or (3) magistrate
51-3: (Void/Voidable) Void if between first cousins, bigamy
-Voidable (ie, valid until annulled): Under 16, impotence, incapable of contracting (mental capacity at precise time when marriage is celebrated)
-Not void when 16yo pregnant female, child already born
51-8: (License issued by Register of Deeds) ROD determines parties are capable to marry
III. Divorce: 11 states, including NC, permit jury to play role in divorce action.
1. Grounds (Fault vs. No-Fault):
(a) Fault-Based Grounds.
(i) Adultery. Cts allow circumstantial evidence to support adultery claim. Evidence must show: (1) disposition of def and paramour to commit adultery, and (2) opportunity to commit adultery. Eg, proof that wife was seen entering hotel with paramour is sufficient circumstantial evidence.
(ii) Desertion. Generally requires: (1) physical separation; (2) separation w/o consent of other spouse; and (3) separation w/o justification. Presumption that physical separation is with consent.
*Constructive desertion: One spouse brings about a separation from the other spouse because of latter’s misconduct. Eg, physical abuse, violence.
(iii) Mental/Physical Cruelty. Cts often require that claimed mental cruelty pose a psychological danger to pln’s well-being.
(b) Affirmative Defenses
(i) Unclean Hands. Requires that petitioning party enter ct w/o serious fault.
(ii) Recrimination. Complaining party was guilty of an offense that would justify the def obtaining a divorce.
(iii) Condonation. An expressed or implied forgiveness of marital misconduct.
(iv) Collusion. Agreement by the two parties to create a false-fact situation upon which a divorce could be granted.
(v) Connivance. Consent by one party to adulterous act of other.
(vi) Insanity. Used in limited circumstances. Eg, Ground for divorce is claim of cruel/inhuman treatment, action would fail if based on acts attributable to insanity of def.
(c) No-Fault Grounds. Trend began in 1960s and 1970s. Requires consideration of marriage as a whole and makes possibility of reconciliation an important issue. Goal is to create more conciliatory atmosphere to divorce. All states except NY have adopted no-fault divorce on some level.
*Grounds vary among jurisdictions. Often include living separate and apart for a specific period of time, incompatibility, irreconcilable differences, and irretrievable breakdown of the marriage. When irretrievable breakdown is ground, one party’s testimony alone may be enough to prove.
2. Foreign Divorce
In re Ramadan: Husband and w
nd Board
Perkins v. Perkins, 355 S.E.2d 848 (1987) Pln must prove one of the grounds for bed and board divorce (as listed in the statute) and that it was because of def’s misconduct not provoked by pln. Pln alleges that def was alcoholic and caused constructive abandonment. She provided no proof of any of this!
*No proof of divorce of bed and board. If you are the one seeking divorce from bed and board, you must prove that you are without fault.
IV. Constitutional Issues
A. Text:
1. Religious Preferences: Can religious preference for certain marriage practices exempt you from federal or state laws?
Reynolds v. U.S.: Mormon bigamist arrested for committing bigamy, challenges Morrill Act that found it criminal to commit bigamy.
*Ct says that polygamy/bigamy has always been outlawed in our nation. Declares Congressional statute constitutional within their legislative power. But are Mormons excepted from statute because they make polygamy a part of their religion? Ct says this would set bad precedent whereby people could try to get out of all sorts of laws prohibiting really, really bad things by arguing that they do it for religious reasons (eg, religious sacrifice).
*Religious beliefs do not trump criminal laws.
2. Fundamental Right: Cannot have statute that prevent couples from getting married.
Loving v. Virginia: Interracial couple. VA statute prevents interracial marriage. Does it violate the EP and DP clauses of 14th? YES, says Ct.
Zablocki v. Redhail: Law said that man couldn’t get married if he had unpaid child support obligations, needed ct’s permission to marry. Had to prove that children were taken care of and wouldn’t become wards of the state. State argued that this took care of children and ensured that people paid child support. Pln gets married and challenges statute under DP clause.
*Ct applied EP clause and argued that marriage was a fundamental right. Applied intermediate scrutiny test. Ct pointed out that this
