FAMILY LAW OUTLINE
Spring 2011
I. Introduction
A. Two types of law included in the field of family law
1. The law concerning the formation or dissolution of family relationships
a. Specifically the relation between H & W and
b. the relationship between parent and child
2. The law governing the rights and obligations hat flow form these relationships
B. What is a Family? – Three legal definitions:
1. Status Approach – Formal definitions of family. (i.e. a parent is biological or adoptive parent, marriage is only between male and female) Very rigid categories.
a. Advantage – this creates predictability b/c always know if you are in a specific category or not
b. Criticism/Disadvantage – An all or nothing approach (i.e – step-parent may function as parent but you are not biological parent and therefore not a “proper” parent.
2. Functional Approach – Article by Minnow / Class Notes
a. Generally – Whether the group of people “function” as a family regardless of whether they fall into formal definitions of family (i.e. college students living together may be a family – Glassboro case).
1. Functional approach looks at the sharing of affection, resources, and responsibilities such as chores; think of one another as family members; present themselves as family; and present themselves as family to neighbors
b. Advantages – Flexible, can change with the times; can truly define those who actually “function” as a family while not in formal definition.
c. Disadvantages –
1. Unpredictable – Vests a great deal of discretion within judge or decisions maker. It can be a subjective evaluation.
a. You can have individuals that may considered to be a family under functional approach that are socially unacceptable.
b. Individuals may be declared a family who do NOT want to be recognized as such (i.e. roommates).
2. Manipulative – A functional test opens the legal system to manipulation by people who want to take advantage of certain benefits from family status BUT who do not want to take on certain burdens.
3. Contractual – Private ordering or chosen relationships between individuals that allow them to choose the specifics of the relationship between them.
a. Disadvantage – May not necessarily want individuals to define themselves in relationships that are not socially acceptable.
b. Advantages – Individuals will be able to order their affairs & relationships w/o gov’t or social policy interference.
1. Example – Marvin v. Marvin (supra.) – Combo of contract and functions
4. EXAM TIP – Sally G. loves these three terms; on exam, make sure you identify the different definitional approaches. Use them in the exam somehow!!!! Throughout the semester we have seen the courts and legislatures sliding back and forth between the three definitional approaches toward family to suit their needs and ability to make a decision.
C. Why does it matter if you are a family? (This list will show how areas of law are affected when a group is defined as a family)
1. Legal Implications of being defined as a family
a. Tax Law, Inheritance , Tort Immunity, Public Assistance, Medical Treatment, Property Rights, Employment Benefits, Child custody and Support , Alimony, Retirement Benefits, Immigration, Restraining Orders, Spousal /Testimonial Privilege, Social Security, Workers Comp, Wrongful death Actions, Infliction of Emotional Distress.
II. RESTRICTIONS ON WHO MAY MARRY: INCEST AND POLYGAMY
A. Introduction – marriage is a social and legal artifact and it not a product of nature. It is legal and nature because of who can get married and who cannot.
B. INCEST
1. Generally – there are restrictions on the relations b/w people and who may marry within those relations.
a. virtually every state has a prohibition on parent/child marriages and sibling marriages.
b. states are divided on prohibitions against half blood marriages, marriages between adopted relationship, step relationship marriages, and first cousin marriages.
2. Section 207 Uniform Marriage and Divorce Act (This is a model law and is not a law unless it becomes enacted. It is a highly respected model law. It is adopted in many states either in whole or in part.).
a. § 207 describes marriages that are prohibited. (top pg.13)
b. New Jersey Statute 37:1-1 is similar to section 207 in that it describes certain marriages that are void (pg. 6 of the NJ statute supplement).
3. Back v. Back –
a. Facts – Decedent married a women who had daughter from a previous marriage. Decedent then divorced that women and 4 years later married her daughter from the previous marriage. Is this marriage void due to incest?
b. Rule – The statute said a marriage is void if it was incest – a marriage b/w a man and his wife’s daughter. The marriage was not void, and thus valid, b/c once he terminated the marriage to the woman, the daughter was no longer the daughter of his wife; therefore, the marriage to the daughter did not fall w/in the statutory definition of incest.
c. Definitions to note:
1. Consanguinity – a relationship (and not) based on blood.
2. Relationships of Affinity – a relationship premised on marriage.
d. Policy argument against Incest – Both religious beliefs and modern genetics are against incestuous relationship.
1. Genetics say people of genetic relations are forbidden, depending on the relationship. (Need a larger gene pool)
2. Anthropologists say that society should be against incest because it prevents clans from reaching out to other clans. Interaction among different clans creates a richer human society.
3. Sociologists _ say the ban on incestuous marriage is to keep tensions out of the nuclear family (sexual rivals b/w siblings or parent/child)
4. The western view is not predominant – many indigenous cultures, Muslim countries, and India allow some incestuous relationship.
e. The prohibition on incestuous relationships is ancient and based on religion. Close relatives should not marry but sometimes this prohibition is harsh.
f. The Distinction b/w Void and Voidable:
1. Void – the marriage never existed from the outset.(you do not have to do anything it simply never existed)
2. Voidable – the marriage up until a certain point is ok but now it can be void.(this usually happens when a party comes forth to attack the marriage).
C. POLYGAMY
1. Introduction – the prohibition was originally instituted in the Western United States as a way to break the Mormon faith, which was thought to be a cult.
a. Polygamy was prevalent and the courts felt that this was no defense to the crime, just b/c many people participated in t
ous scrutiny (an in between for strict and intermediate) on the theory that marriage is a fundamental right under the equal protection clause.
· does the government action directly and substantially interfere with marriage?
· If it does then it cannot be upheld unless it is closely tailored to a sufficiently important state interest
· If it doesn’t then apply the rationale basis standard
b. Marshal could have applied economic discrimination via poverty but then he would have to apply rational basis. Thus he framed the issue as a fundamental right under the EPC in order to apply strict scrutiny
3. The Rule from Zablocki according to Sally G.
a. Reasonable regulations may interfere w/ the right to marry provided that they do not substantially or directly interfere with the right to marry.
b. Powell and Stevens disagree with this test
1. Powell – Wants intermediate scrutiny b/c when one applies the rigorous scrutiny standards above they threaten to overturn other reasonable regulations regarding marriage such as blood tests, incest, bigamy.
2. Stevens – Says we should focus on governmental regulations on marital statutes or gov’t restrictions on who may marry.
c. Hypo – The case of the marriage penalty tax is one indirect interference the court has upheld. Laws that cut off or effect the economics of the individuals who marry are indirect effects. Apply the Two tier rigorous scrutiny test below:
1. 1st Test – Does a reasonable law directly or substantially interfere w/ the right to marry? If no then do not move to next test. If YES then go to part two:
2. 2nd Test – When a statutory classification significantly interferes w/ the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.
3. N.B. While the Court comes out advocating a fundamental right, BUT they apply a standard that falls short of strict scrutiny. The two tier test creates a watered down version of strict scrutiny.
4. The Court adopts this Rigorous Scrutiny Standard Instead of Strict Scrutiny b/c the judges were concerned that:
a. Marriage is an area of state police power and did not want Fed Gov’t to interfere w/ it too much
b. No reasonable regulation could pass a strict scrutiny standard such as age, an STD regulation, or blood tests.
5. Sally G says that in case, when court applies Rigorous Scrutiny – It assumes that they are good goals in Zablocki. However court has problem in that the means are not closely tailored to achieve the ends the states is trying to achieve. Thus it’s overly inclusive.
