Form · Function · Gov’t Interests
FORMAL – Can be a family by:
FUNCTIONAL: What it means to function as a family:
· live together
· sharing assets – financial dependence
· shared activities
· emotional dependency
· shared decision making
· free assistance
Issue today is if you have the characteristics of family, does it mean that it is a family? Which would mean does fraternity and same sex marriages would deserve rights of family. Some states held that fraternity were family.
Note: that the formal definition of family is easier to grasp, the functional definition of marriage is more complicated and raises more complex issues.
No common law marriage in NJ since 1939 – most states repealed it.
Why the government has an interest in determining what a family is:
· Economic Costs—state has an interest in keeping down economic costs (who can get benefits by calling themselves a family).
· Regulation of Conduct—state’s definition of a family is in part to regulate people’s conduct and to tell people what type of behavior/conduct is encourages or should be adhered to (regulating conduct).PALIMONY
Cohabitation · Relief · NJ Rules/Cases
Palimony is a slang term coined by attorney Marvin Mitchelson in 1977 when his client Michelle Triola (who called herself Michelle Triola Marvin at the time) filed an unsuccessful suit against actor Lee Marvin. The term is a portmanteau of pal and alim
uples may not enjoy all the legal privileges of marriage (tax breaks, zoning protections, etc.), but may still have recourse in legal system for protection. Mostly involve enforcement of contractual provisions, implied and express.
o Express – Many courts enforce express K btw unmarried couples to share property acquired while they were cohabitating
o Implied – Some courts will enforce implied K’s also. Others won’t enforce either on public policy grounds.
TWO RULES IN COHABITATION:
MAJORITY RULE: CA supreme court in Marvin v Marvin (18 Cal 3d 660 (1976):
· Legal right to PALIMONY in cohabitation relationship
· Focus on EXPECTATION of the parties
· Even in non express agreement, court should inquire as to conduct of parties to determine whether conduct demonstrates implied K, agreement of partnership, or joint venture or some other tacit understanding b/t parties.
MINORITY RULE: Illinois Supreme Court in Hewitt
· No legal rights arising out of cohabitation – any contract the couple might have made concerning their property or support obligations would be unenforceable as an agreement in consideration of future illicit cohabitation.
· Only applied by Georgia, Illinois and Louisiana
· based on K theories and equity
· family court = equity court so could argue equitable principles do not matter if bad law and bad facts
· importance of fairness
THREE TYPES of relief: