Family Law
Howell
Spring 2014 Outline
1. Non Marital Co-habitation
a. Marvin v. Marvin – case where actor and actress decide to live together, split all income/property, then split up. Π stresses oral agreement, while Δ stresses violation of public policy and Ks have to be in writing
i. Ct. concluded: that Family Law Act did not govern non-marital relationship;
ii. Courts should enforce express Ks, except when consideration is meretricious sexual services
iii. Courts can look to other avenues of relief such as: conduct of parties (implied K?), doctrine of quantum meruit, or equitable remedies such as constructive trusts
b. Class Notes – Marvin v. Marvin
i. Prior to 1976 no court upheld agreement between non-marital co-habitators due to morals of the day
1. Concept of living together before marriage regarded as immoral by general public and judiciary
2. K that were illegal/violation of public policy were generally not upheld
ii. Π stresses oral agreement, share income, property – he was to take care of her for the “rest of her life” – Δ denies
iii. Δ argues public policy argument – precedent of the day followed that illicit, immoral relationships could not be consideration. Basically arguing that you cannot come after me because I was immoral
1. Π Counter argument to that would be that times are changing, that the law was now behind the times
iv. This case shows that Ct. can disregard sex and focus only on oral agreement, that she gave up her career, stayed at home, etc.
v. In the end, nothing speaks louder than paper – written agreement
vi. St. S. Ct. in this case says other remedies are going to be allowed such as:
1. Evidence of conduct of parties to determine if implied K existed
2. Doctrine of quantum meruit, or other equitable remedies
a. Quantum Meruit – allows for recovery when services are rendered with reasonable expectation they will be paid for
vii. Today:
1. Importance of a non-marital cohabitation agreement stating intentions of those living together, stating no part of agreement is based on sex
a. CL needs to know this may not hold up, depending on the state in which you’re writing agreement
b. Attorney that wrote agreement needs to protect themselves – retainer agreement stating that it may not hold
c. Morone v. Morone – π says Δ lived together since 1952, held out as husband/wife. Kids are his, joint accounts, etc. π says two causes of action: performed domestic duties with expectation of compensation, and oral K – Δ stated he would support and provide for her
i. Ct. of appeals does not follow Marvin, sees implied K as amorphous, but sees express Ks enforceable (however, may be problem of proof)
d. Gormley v. Robertson – two ladies cohabitated, pooled resources, shared debts, etc. Case really stands for change in definition of meretricious relationship: now means understanding that marriage does not exist between two people
e. Class notes 8/20
i. Hypo: man and girl living together, Mercedes and diamond necklace given to her
1. He would not have a case because those items would be gifts and not fall under Marvin remedies
ii. Remember Marvin remedies: express/implied K; constructive/resulting trust; partnership agreement or joint venture; some other tacit understanding between parties; quantum meruit
iii. Morone v. Morone – NY
1. NY opens only one door of relief – if express K can be found they can enforce that
iv. Statutory approaches to Cohabitation
1. Some states have adopted legislation
2. MN – statute provides that where parties live together without marriage and sexual relations are contemplated, a K between them concerning earnings or property is enforceable only if written and signed by both
3. TX – agreement made on consideration of non-marital conjugal cohabitation must be in writing (falls into statute of frauds)
v. ALI Principles: Principles of the Law of Family Dissolution (to govern domestic partners) proposes:
1. Domestic partners as “two persons of the same or opposite sex, not marries to one another, who for a significant period of time share a primary residence and a life together as a couple”
2. Under these principles, property and support rights would be same for domestic partners as for married couples
vi. Gormley v. Robertson – basically, same sex couples get same relief as heterosexual couples
1. Hypo re Gormley – 2 males, 25 years together meretricious relationship re Gormley. John in accident ends up needing round clock care. John’s mom religious, against lifestyle, wants guardianship, Paul, his partner, wants guardianship too
a. They both argue “best interests” of John – Ct. awards family (mom) guardianship. Ct. may have to enforce visitation for Paul
b. Remember, about best interest of party – not mom/family
2. Pre-Nuptial Agreements
a. Class Notes 8/22
i. Understand Marvin/Co-habitation – what remedies are
ii. Prenuptials really about money – where each party is after dissolution usually about:
1. Usually financially stronger party, male, doesn’t want to pay alimony
2. Perhaps children from other relationships, don’t want inheritance to go to new spouse vs. children
iii. A valid agreement:
1. 2 parties, legally capable of entering into K
a. Think possible incapacities: age? Incompetence
i. Think K principles – void if incompetent, can be voidable if not person has not reached age of majority
2. Consideration (in states like AL – all consideration is needed not anymore than agreement to marry itself)
3. K must be for lawful purpose
a. Ex. Must not be unlawful or violate public policy (immigration)
b. Ex. If someone wants to write that there will be no kids
i. Argument in this situation would be that you can sever that provision, K still good
c. Never put in pre-nuptial agreement custody of children in advance because best interests of children may change with time
iv. Pre-nuptials are outstanding vehicles for finance of parties
1. Don’t litter up declarations with personal requirements
v. K or agreement made in contemplation of marriage fall within statute of frauds
1. Must be in writing, signed by party to be charged
vi. Bad practice to sign/try to sign right before wedding – may have issue of voluntariness or duress
vii. Uniform Premarital Agreement Act – assumes validity of pre-nuptial (rules change from state to state)
1. Agreement not enforceable if party against whom enforcement is sought proves that:
a. Execution of agreement was not voluntary, or
b. Agreement was unconscionable when it was executed and before execution that party:
i. Was not provided fair and full disclosure of property/financial obligations of other party
ii. Did not voluntarily and expressly waive, in writing, any write to disclosure of the property or financial obligations of the other party and
iii. Did not have or reasonably could not have had, and adequate knowledge of property or financial obligations
c. If provision of agreement that modifies or eliminates spousal support, but that would cause eligibility of public assistance, court may require party to supply support
d. Issue of unconsciona
Studenmayer case – clear and convincing evidence needed by party claiming common law marriage
h. How do people get into common law marriage situations when (legal) marriage so easy?
i. Married and divorced, then the couple slides back together
ii. People drift together, stay until they feel married – instead they just call themselves husband/wife
iii. At some point a judge has to decide as to the facts and at what point the couple went from living together to being common law married
iv. A common law marriage is entitled to equal dignity as those who are ceremonial marriage, but the CL marriage must be proved by clear and convincing evidence.
v. To prepare a CL marriage case, you must track down the paper trail. In most cases, the male denies that there is a common law marriage.
vi. The attorney resorts to circumstantial evidence to prove or disprove the CL marriage, i.e., do the parties where wedding rings, do they celebrate anniversaries, do they do the things that would indicate that they were a married couple.
i. Lewis v. Anderson—the couple got married in in 1974 and was divorced in 1977. They couple reunited, and began living together in 79-80. They adopted two children and lived together for 20 years. They joined a church and held themselves out as married. The court found that the couple was informally married in 1982. Husband claims that since their divorce, he admitted the relationship, but he did want to remarry the wife because she would not consent to a prenuptial agreement. The judge was able to follow the paper trail and the court determined it was a common law marriage.
j. Renshaw v. Heckler – couple travels back and forth through PA when visiting family, use law of state of PA to show common law marriage
i. Thinnest case – teaches that you have to go further
ii. Did they spend enough time in another state where common law was used?
1. Then lex loci (law of the place) would apply
2. If marriage valid in place where created – valid everywhere unless
a. Violates strong public policy of that state
iii. PA abolished common law marriage after this case
k. Putative Marriage – adopted from Napoleonic code, purpose was to protect parties from invalid marriages
i. Occurs when a marriage is contracted at time when an existing impediment makes the purported marriage void or voidable and when one or both parties are ignorant of the impediment
1. Party who entered in goof faith belief that marriage was valid allowed to assert financial; property claims based on the marriage
2. No requirement of cohabitation is made
l. Krug v. Krug – main thing here – 60 day rule. In AL – and some other states – must wait 60 days before getting re-married
m. Overview – 3 types of Marriage
i. Married by ceremony (preferred)
ii. Few states still allow common law marriage
iii. Remember – Napoleonic states – putative marriage
