FAMILY LAW OUTLINE
I. UNIT ONE: MARRIAGE
a. Marital and Individual Privacy
i. Griswold v. Connecticut (1965) p. 64- 72
· Issue: Whether a law that forbids the use of contraceptives rather than regulating their manufacture or sale is constitutional when physicians gave medical advice to married persons as to the means of preventing conception?
· Holding: No. The law is unconstitutional. The protection for marital privacy is implicit in the Due Process Clause.
· “Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby the area of protected freedoms.”
· The right of privacy is older than the Bill of Rights, political parties, and school systems. Marriage is an association that promotes a way of life, not causes; a harmony in living, not political faiths, a bilateral loyalty, not commercial or social projects.
ii. Comment on the Right to Marry, p. 72- 73
· Loving v. Virginia (1967): VA statutes prohibiting interracial marriages violated the Equal Protection Clause as invidious racial discrimination. It also violated the Due Process Clause because “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
· Zablocki v. Redhail (1978): Wisconsin statute that denied marriage licenses to individuals with outstanding unpaid child support obligations was held unconstitutional. Not every state regulation regarding marriage is subject to rigorous scrutiny, but reasonable regulations may be imposed.
· Turner v. Safley (1987): Right to marriage also extended to prisoners.
iii. Sex and Sensibilities: Nobody’s Business
· MA allows gay marriage. States are allowed to experiment with this. Article promotes the right of adults to choose their living, marital, or child-rearing arrangements.
iv. Collaborative Law (CL)
· Lawyers do everything possible to resolve divorce cases without going to court until an agreement is reached. If they fail to reach a settlement, lawyers agree to withdraw from the case, and clients are referred to trial counsel.
· Focuses on problem-solving instead of argument. Negotiations occur in four-way meetings between clients and lawyers. They are to negotiate in good faith, and exchange all necessary financial and child-related information. Team-based approach to divorce process.
· Disadvantages: denial, anger at the spouse, inability to adhere to guidelines, fear, unwilling to share all necessary information. Other risks (1) expense if it fails, (2) delay with dragging out negotiations, (3) hiding of financial assets which may work better with court involvement.
· Ethical issues: zealous representation of client.
· Comparison with Divorce Mediation: mediators cannot advise both clients. CL may help because both sides have counsel.
· Advantages: reduced psychological and financial costs, opportunity for problem-solving instead of adversarial negotiation.
b. Formal & Informal Marriage
i. Regulation of Entry into Marriage:
· State statutes regulate. Legislation governs procedure for licensing and solemnization of ceremonial marriages. Individuals must obtain a license. There is usually a waiting period between the application for the license and its issuance, or between the issuance of the license and marriage. Physical examination required usually.
ii. Solemnization:
· Statues require two witnesses for marriage, whose names or signatures appear on the certificate. This is usually some sort of ceremony, and does not have to be religious.
iii. Common Law Marriage:
· Roots in English ecclesiastical courts. Ten states and D.C. continue to recognize them as valid, although they are on the decline.
iv. Accounts Management, Inc. v. Litchfield (1998) p. 90- 93
· Issue: (1) Does the failure to record a marriage license invalidate a marriage? (2) Do medical expenses constitute a “necessary” of life?
· Holding: Yes to both (1) and (2). Court says that woman put herself out as the wife, and the marriage had consent and solemnization. Court says that marriage is valid, even if statutory formalities are deficient. Statute says the husband and wife are joint and severally liable for all necessaries of life. They are meant to be responsible for each other’s life and upkeep. Wife is responsible for the medical bills.
· Public Policy: This is essential. They want husbands and wives to be responsible for each other’s medical treatment. Also, policy wants to recognize most marriages.
· Note 1: Estoppel prevents one from denying something if they behaved a certain way before.
· Note 2: Necessaries: Both husband and wife are responsible for debts incurred by the other.
· Note 3: Marriage Validity: Most cases hold marriage licenses valid even if they are defective. Public Policy is in favor of recognizing and validating marriages.
v. Farah v. Farah (1993) p. 93- 98
· Issue: Whether a proxy marriage performed in a foreign country is recognized as a valid marriage in VA?
· Holding: No. They did not meet the formalities of the proxy marriage in England, and therefore it was not found to be valid in VA.
· Double Choice of Law: VA would have recognized the marriage as valid if the country or state it was performed in recognizes it as valid. Because they
nd marriage contracted before the annulment decree. Because her marriage was voidable, she had to annul it before her second marriage.
· Annulment: A judicial declaration that no marriage existed. Effect of annulment varies according to where the marriage is void or voidable.
· Void marriage: invalid from its inception, because the parties lacked the capacity to contract under state law, or are related in a prohibited manner. Null from inception.
· Voidable marriage: results from fraud, error, duress, or other imperfect consent. Valid until set aside by a decree of annulment. This is what P had because she was forced to marry her rapist.
· Dissent: Argues that there is no evidence to support the view that P married Mr. Everett, so the question of whether the marriage was annulled was irrelevant. P testified no marriage ceremony was ever performed. Under MO law, a marriage license alone is insufficient for marriage. Majority argued that the subsequent actions of P validated Mr. Everett as her spouse.
c. Annulment, Substantive Restrictions on Marriage
i. 23 Pa. C.S. § 1304- statute with marriage restrictions.
ii. Successive Marriages, p. 114- 123
· Marriage is not permitted in any state if either party has a prior marriage that has not been terminated by death or divorce, and marriage is also not permitted if the parties are related within certain degrees by blood or marriage.
· Marriages in which one party is below a minimum age, or where a party lacks capacity to consent to or consummate the marriage, or where consent is induced by fraud or duress or as jest or dare are understood to be voidable.
· Proceedings for annulment may be brought in void or voidable marriages.
· Presumption of validity: often goes to the second or most recent marriage, although it doesn’t have to be the subsequent marriage. Monogamy is the controlling principle of Anglo-American marriage law. A subsequent marriage contracted by one having a living spouse whom has not been divorced is void.
iii. Chandler v. Central Oil Corporation, Inc. (1993) p. 115- 119
Issue: Whether a subsequent spouse is entitled to benefits when a previous
