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Family Law
Rutgers University, Newark School of Law
Guston, Debra E.

FAMILY LAW                                                 Debra Guston                                            Fall 2015
Common Law Marriage
Hargrave v. Duval-Couetil (pg. 173)—South Dakota statutorily abrogated common-law marriage but will recognize a valid common-law marriage entered into pursuant to another jurisdiction’s laws. 
Marriage Contracts
Graham v. Graham (pg. 184)—A contract between persons contemplating marriage to change the essential incidents of marriage is illegal.
The Uniform Premarital Agreement Act (pg. 1247)—The UPAA has been adopted by 27 jurisdictions: Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia and Wisconsin.
The UPAA has been introduced in 2009 and not yet adopted in these jurisdictions: Mississippi, Missouri, South Carolina and West Virginia.
Ansin v.  Craven-Ansin (pg. 1264)—Enforcement of postnuptial agreements are not against public policy. They just differ from pre-marital and separation agreements and must be closely scrutinized.
NJSA Title 37:2-32-39
NY Domestic Relations Law Title 13 §236
NY Domestic Relations Law Title 13 §250
NJSA Title 37:1-1-35
Covenant Marriage
Only Arizona, Arkansas and Louisiana have covenant marriage. There are potential constitutional issues with these statutes involving the separation of church & state and possible First Amendment implications due to mandatory counseling.
Covenant marriage states are fault states. NJ is a no fault state (18-month separation & irreconcilable differences).
Since the Arkansas covenant marriage requires an affidavit, would NJ uphold the marriage and recognize the affidavit as prenuptial agreement? In NJ, you need 1 year to file a complaint, but there might be an exception if there’s adultery. But will NJ honor a policy that falls so contrary to its own?
AZ, CA, NV, NM, TX, WA, PR, LA, WI and ID are community property states. All property gained after marriage is owned jointly. Pre-marital agreements are common in these states. Income is also considered a common asset. This is unlike equitable distribution states.
CA—Always 50-50 split.
TX—May not always distribute 50-50.
If you are from an equitable distribution state but have property in a common property state, you need to watch out. Disparity in earning capacity, size of state etc. are all considerations in property dividing in community property states.
Property Rights & Obligations – Changed Views
McGuire v. McGuire (pg. 179)—P wife didn’t want to get divorced, but wanted more money from D husband, who didn’t give her money for anything other than groceries. No support payments can be granted where the parties continue to live together and husband and wife.
Separate Maintenance—Granted when someone cuts off spouse from vital funds or health insurance, or wastes marital funds.
Divorce from Bed & Board—Not an absolute divorce. The court divorces you, you don’t have to live together or support each other, but for example you are legally tied together for health insurance or until you sell your house. Neither party can marry during this time.
Orr v. Orr (pg. 198)—State statutes which impose alimony obligations only on one sex are constitutional. Women could get separate maintenance and be dependent, but men couldn’t sue for separate maintenance and had be breadwinners. The issue is gender discrimination. The state was trying to protect the spouse with less earning, but there’s no need for a gender-based statute. The state can see who earns more and has more earning potential in each individual case.
Kahn v. Shevin (pg. 200)—State property tax exemption for widows and not widowers. The court upholds in this particular circumstance, because it’s trying to offset economic past discrimination against women.
Southern N.H. v. Hayes (pg. 249)—The hospital sues D’s ex-wife. D argues that he’s not responsible for her medical bills.
The Doctrine of Necessaries—The spouse can be responsible for medical bills, and the hospital can out a lien on medical property. We still use the doctrine to make sure individuals can get care. The modern vendor is still guaranteed payment through medical property.
Prima facie elements:
Services were provided
Services were necessary
D was married at the time of services provided
No payment has been made
D’s spouse can try to disprove one of the above elements. Limited ways to get out of this. Detrimental to older couples. Some old couples get divorced to avoid creditor responsibility. The spouse needing care can get Medicare assistance and the other spouse isn’t impoverished. This a common law obligation, you cannot get rid of it by pre-marital agreement. It is a 3rd party obligation.
Restrictions on Marriage
Consent – Age
Ratification—The minors reaffirm the marriage when they are of the age of consent.
When is a marriage void? Duress, threat etc. When it’s not possible that the person could have consented. If one party has a venereal disease or misrepresents his/her financial resources grossly.
What of some years passed? Annulment may not be an option, because you would not be getting a division of property without a divorce. If it’s been more than 10 years, there are also social security benefit concerns. You could also lose alimony. Judges also don’t like people using the civil court system to get annulments for religious purposes.
Void vs. Voidable Marriage—If you have a bigamous marriage, you may want to go the voidable route more than void.
Can an annulment allow someone to be unjustly enriched? The court can deviate from the statutes to be equitably fair. 
In re J.M.N (pg. 72)—A minor may enter into marr

safety to any of the children who had not reached puberty. The court said that the FLDS belief system itself does not out the children in danger. None of the identified minor pregnancies had been accorded to any of the children of the 38 women. The court said that the Dept. failed to meet its burden of proof under Section 262.201 and directed the district court to vacate its temporary order.
Loving v. Virginia (pg. 133)—The freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state.
In 1958, Mildred Jeter, an African-American woman, and Richard Loving, a white man, married in DC and returned to Virginia. They were charged with violating Virginia’s ban of interracial marriage. They pleaded guilty and were sentenced to one year in jail, but the judge suspended the sentence for a period of 25 years on the condition that they leave the state.  Virginia courts interpreted the requirements of the 14th Amendment to be met when individuals of both races are punished equally. Noting that Virginia only bans interracial marriages involving white persons, the Court said that the ban is only to continue the ideals of white supremacy. Finding marriage as a fundamental freedom, the Court found the ban to be in violation of both the Equal Protection and Due Process clauses of the 14th Amendment and ordered the couple’s convictions to be reversed.
Voidable Marriages
Lester v. Lester (pg. 165)—Antenuptial agreements which purport to invalidate the marriage are unenforceable. Divorce is the only legal method to terminate a marriage.
Johnston v. Johnston (pg. 168)—P sought annulment after 20 months of marriage based on D’s drinking problem and refusal to obtain employment. In order to obtain an annulment of marriage on the basis of fraud, the fraud must go to the essence of the marital relation. This was not the case here.
In re the Marriage of Farr (pg. 171)—P remarried D thinking he was dying. D had misrepresented his illness and P tried to invalidate the marriage. By statute, a marriage may be declared invalid if one party entered into the marriage in reliance on a fraudulent representation of the other party when that representation goes to the essence of the marriage. The appellate court affirmed the trial court’s invalidation of the marriage.