Family Law
Goldfarb
Spring 2014
I. What is a Family?
A. Why Even Have a Definition?
1. Need a degree of uniformity in application of the law
2. Otherwise the individual has too much power to classify himself as part of a family when it’s convenient
B. Defined Three Ways
1. Status
a. Related by blood adoption or marriage
b. Advantage- Easily delineate who falls inside or outside definition by birth or marriage certificate
c. Disadvantage- Some types of family that don’t conform to traditional will be excluded
2. Function
a. Shared support and intimacy and financial interdependency
b. Families receives benefits that others do not
i. Advantage- Enables families to better support its members
ii. Disadvantage- Can be overly broad and lead to fraud or wasted gov’t spending
c. Promotes diversity insofar as non-traditional families
3. Contract
a. Commitment or an agreement between people to be in an on-going relationship
b. Advantage- Private ordering meaning people can choose they’re family
c. Disadvantage- Leaves children in the lurch; Parents could contract to not care for their children
II. Restrictions on Who May Marry
A. Incest
1. Marriage or sexual relationship between those who are related
2. All states have the prohibition but definition varies by state
3. Why prohibited?
a. Prevent likelihood of genetic mutation
b. Protect vulnerable children from being exploited
c. Maintain clarity as to familial relationship
d. Forces families to integrate with other families
4. Back v. Back: Stepdaughter’s inheritance from her marriage to stepfather was ruled valid b/c the two married after stepfather divorced stepmother.
a. After divorce, affinity ends- stepdaughter is like any other woman stepfather can marry
b. No consanguinity- relation by blood that endures
c. Exploitative concerns- Turns on whether stepfather raised stepdaughter as a child or whether she was already an adult
5. State v. Sharon H: Married half-siblings violates the Delaware incest statute.
a. Adoption does not sever sibling relationship
b. Preventing incest overrides breaking sealed adoption record
c. Some states consider fertility as a factor
B. Age
1. Should ability to marry be easier or harder?
a. Easier- financial advantages, build commitment
b. Difficult- want healthy stable marriages, otherwise leads to negative outcomes if spouses feel coerced
2. NJ Law: Title 2A:34-1(e)
a. Minors under 18 need parental consent
i. Under 16- needs parental and judicial consent
ii. Parents can seek annulment even if they originally approved it until kids reach 18
b. Annulment
i. Statement by court that marriage never existed
ii. Can have marriage annulled at anytime before s/he confirms marriage after turning 18
iii. Confirm- indication to stay marriage, usually evidenced by cohabitation
3. Annulment vs. Divorce
a. Not entitled to division of property in annulment
b. Can seek alimony in both
C. Polygamy
1. Distinction
a. Bigamy- Legally married person marries 2nd spouse after a prior legal marriage usually w/o first spouse knowing
b. Polygamy- Having more than one spouse at once usually with the other spouse knowing, sometimes part of one big family
2. In Re Steed: Court found dept.’s decision to move children out of commune was not justified
a. Children not in immediate, physical danger
b. Pervasive belief system, training young men to be abusive did not meet the standard
c. If impregnated 13-17 y/o girls married, consensual sex is not a crime
d. Dissent
i. Demonstrated hair-pulling as a way to establish control over subservient girls
ii. Girls are not emotionally mature enough to engage in sex even if “married”
3. Some multiple spouse arrangements claim advantages
a. Division of labor frees them up to pursue career
b. Can exert power in numbers over husband
4. Deceptive Polygamy
a. Other spouses do not know of each other
b. Recent marriage = valid marriage
c. Death, divorce, annulment can defeat presumption
5. Inadvertent Polygamy
a. Wife remarries after husband has disappeared, he turns up or couple married in country not recognized by state
b. Still married to 1st person
c. Some states passed statutes allowing spouse to have declaration of death, freeing him/her up to remarry
D. Constitutionality of Marriage R
5. U.S. v. Windsor (2013)- Struck down feds’ refusal to recognize based on equal protection concerns in 5th amendment
a. Rational basis test employed
b. Creates 2nd class citizenship
c. Humiliates the children of same sex couples by invalidating their marriage and burdening them financially
d. Dissent
i. Scalia- opens the door for striking down any state law that refuses same sex marriage
ii. Roberts- interferes w/ state control of marriage
6. MT v. JT (1976): Ironic outcome where Texas law enabled a transgendered woman, born a man, to marry her lover despite being lesbians
a. Texas law held your gender at birth was your gender despite any sex change
b. The two were lesbians for all intents and purposes
F. Procedure and State of Mind
1. Formal Marriage Requirements
a. License- for recordkeeping purposes
b. Ceremony- clergy or gov’t official perform; lenient
c. Registration- loosely enforced
2. State of Mind Requirements
a. Interprets marriage as a contract
b. Parties may lack capacity to marry due to want of understanding as evidenced by any of:
i. Mental condition
ii. Influence of intoxicating agents
iii. Lack of mutual assent
iv. Duress or fraud
3. Duress: Lester v. Lester- Mere pressure from the spouse or his/her family is not enough to show a marriage was entered into under duress thus nullifying the marriage
a. Duress is a less common defense now that divorce is so readily available
b. Shotgun wedding (literally) is a coerced arrangement
4. Fraud: Johnston v. Johnston- Only serious traits like sex, sexuality and reproduction will go the essence of marriage in the eyes of the court such that fraud is demonstrated
a. Annulment means a division of property, faster process
b. Divorce still a viable option
