January 11, 2018 Defining Family:
Three ways that law defines
Status: traditional approach
Certain types of relationships
Black and white way of viewing, traditional perspective
Who you are, not what you do or want
Are you the child of x? Do you have an adoption decree? Etc.
This was the only way of establishing family for many years
Function: More recent approach
Do these people act as family members?
Is there interdependence? (Financial, emotional, etc.)
This is a functional evaluation
Law has become more willing to recognize a family relationship with the features above
Especially in cases such as same sex parents
Two people functioning as coparents who then split up
Contract:
Is there an agreement between 2+ people to function as a family
Some circumstances in which this is recognized
Some overlap, because marriage is seen as an agreement
Need to be competent to enter contracts
Pros and Cons of Legal Approaches to Family
Pros
Cons
Status
Easy to figure out
Clear-cut
under inclusive
very rigid
doesn’t really reflect how people actually live
Functional
more flexible
reflects how people are actually living
can be manipulative
fact intensive
Contract
Empowering people to select their own relationships
Honors individual autonomy
Not everyone can enter into contract
Might want to have rules to protect people from bad bargains
What is oral or no express contract, but implied?
Situations might change
Why do we care?
If in a family, have certain obligations
Lots of legal issues arise because of families
Many non-family law legal rules/doctrines in unrelated fields depend on whether or not people are family members
Estates: intestacy versus wills
Immigration
Domestic Violence: civil restraining order may depend on family
In NJ can’t be DV if not in domestic relationships
Vicarious liability in torts
Of minor children depending on state law, none at common law
Intentional infliction of emotional distress need to be related
Loss of consortium
Initially only for husbands whose wives were injured
Expanded
Substitute decision making
Insurance/pension
Health insurance policies
Public assistance/welfare
Evidence: marital testimonial privilege, evidentiary privilege for confidential marital
Social Security: spouses and divorced after 10 yrs. marriage
Workers’ comp.
Property: TBE
People who need to know family relationships:
Parties themselves, government, other third parties
Marriage
Incestuous marriage
14th century -> Ecclesiastical law -> Common law
Every state prohibits siblings from marrying each other
Reasons for prohibition on incestuous marriages:
Genetics
Prevent abuse/exploitation and vulnerability
We know these can arise in absence of biological relationships
So incest rules underinclusive in this way
Social attitudes and community norms
Taboo
Varies by culture
Bible cousins okay
Uncle niece marriage in some cultures okay
Religious prohibition
Not considered sufficient in and of itself
Force newer families to interact with each other
Helps develop a more complex society
In many jurisdictions incestuous sex is also criminal
Back v. Back:
Married a widow who already had a daughter from previous marriage
Got divorced, married former stepdaughter
IA law prohibits man from marrying wife’s daughter
Plaintiff is the daughter wife, someone is fighting her for the inheritance
Court: marriage is okay; woman died, no longer daughter of his wife
Is this right? You can never marry wife’s daughter as long as married to the wife, but can’t be married to more than one person
Court said the statute is to stop sex with daughter while married to the wife
Restrictions on who may marry—Incest:
p. 63 State v. Sharon H.
DE has a criminal statute that prohibits them from marrying
The 2 are half-siblings, were not raised together
Their arguments:
Because Sharon was adopted by another family no longer siblings
Adoptions are sealed and secret, court shouldn’t probe
Only half-siblings
Municipal court agreed with them, but the Superior Court reverses and charges with a crime for marrying each other
Which court is correct?
Why do we think incestuous marriage is bad?
Worried about exploitation and grooming
Doesn’t apply
Genetic
Infertile? Don’t care. Not? Maybe issue.
Woody Allen Situation:
Was in relationship with Mia who had adoptive daughter
Mia discovered photos that he was having affair with her daughter
Daughter later married Woody
Was this okay?
No status relationship, he wasn’t her stepfather, not married to Mia
Functional? Yes probably, but incest laws care about status
She was also very young
Does it matter if he came into the picture when she was very young?
That he may have molested his own adoptive daughter?
Typically if found in violation of incest statute, marriage will be voided/annulled
This is different than divorce
Void from inception
as if never married
NJ Family Law Statutes: Causes for judgment of nullity
Would prevent a lawsuit on grounds of Back v. Back
37:1-1 lists the prohibited relatives explicitly
C: as if absolutely void
Could consider statutes like this to be culturally biased
Jan. 16, 2018 Restrictions Based on Age
NJ Marriage laws re age:
Over 18 can marry without any consent
16-18 approval of parent or court
Under 16, need parent and court approval
Reasons: discourage child marriage, and protect children from consequences from entering into legal arrangement that is difficult to get out of because they aren’t mature enough
Do these laws still make sense? Is it still good public policy?
Teenagers these days rarely seek to marry, even if they are pregnant
Neurologically we know that brain development continues to 25
Teens have very high divorce rate, esp. if get marred for pregnancy
Marriage is not a panacea: pregnancy doesn’t make
18 is default age for most states
One state 19, interestingly in most states marriage age difficulties can be cured as long as the person continues to live and remain within that marriage past the age of majority
Rationale: ratify the marriage
Reasons ok: 18 to enter contract
Nullity: NJ and other states allow you to annul the marriage if under 18 when married if don’t confirm the marriage post age of majority, even if had parental or judicial approval
NJ annulment statute: 1e Judgment of nullity
If under 18 can have marriage annulled unless confirm after 18 if still cohabit or other evidence
Even if had parental consent at the time
Polygamy:
Two types:
Polygyny (multiple wives; Mormons)
Polyandry (multiple husbands)
Reynolds v. US: constitutional challenge to anti-polygamy federal statute based on free exercise of religion
Sup. Ct. held criminaliza
are living openly about multiple sexual partners, but in secular society a bunch of people secretly sleep with many people
Unintentional (or inadvertent) bigamist: thought that they were divorced but turns out it wasn’t; courts have typical approach (because illegal in every state)
Start with presumption that most recent marriage is valid
Burden is on moving party to prove that prior marriage was valid and was not dissolved by death or divorce
If they prove that, the presumption of the validity of the new marriage is overcome and first marriage is held to be valid
Some states had a statute that if spouse was gone for a few years (say, 5 or 7 years or circumstances appear that they are dead), then subsequent marriage still valid
In the days before cell phones, people would disappear and you couldn’t find them
BL: polygamy generally invalid, some jdx it’s a crime
Kody from sister wives: seeking to get an injunction
religious freedom and substantive due process args under Lawrence v. Texas
saying his choice of sexual behavior just as valid as others
Was dismissed at appellate for mootness because state did not plan on prosecuting
Annulment: marriage had something wrong at its core
Theoretical difference: Void marriage never existed, voidable are in existence unless and until someone brings an annulment action
Today that distinction is meaningless; look at both annulment and divorce and determine which is advantageous for client
Might consider both and figure out which one are more favorable to your client
Previously annulment meant children illegitimate, not really an issue more
Children of annulled marriages considered legit still
Illegitimacy not as big a deal
Residency requirements might be different
Financial requirements might be different
Divorce: equitable distribution of property
Annulment: no equitable distribution, take what they brought with them
NJ DOES have differences between annulment and divorce in treatment
Traditionally annulment only if alive still, but now some courts decide
Voidable: can’t sexually perform, fraud
Void: incest
Time fame: traditionally under common law had to be brought by a spouse while both parties alive
Today differs from state to state, some cases of fraud don’t have to be both alive
Thursday, January 18th
Relationship between state and federal law in Family Law:
Many cases say it’s just a state law issue, but actually federal law places important constraints and limitations
States primarily setup the nitty gritty, Fed in context of constitutional rights
– Sup. Ct. typically situates under EP or DP or family privacy
Loving v. VA:
Sup. Ct. strikes down VA criminal statute prohibiting interracial marriage
16 other states had statutes at this time
Criminal charge for interracial marriage
Were forced to be exiled from VA
Actually a huge issue bc of job and family
