Select Page

Family Law
Rutgers University, Newark School of Law
Perry, Twila L.

Introduction to Family Law
1)      How does the state regulate intimate relationships?
a)      Marriage
i)        What is society saying about sex in relation to marriage etc.?  (Adultery as well.) 
ii)      Societal legal benefits. (Baker v. State, VA statues giving married persons legal rights such as right to sue for loss of consortium.)  . . . what are the negatives? 
(1)   State and private benefits: i.e.
iii)    Immigration status, social security
iv)    Religion vs. marriage.
v)      Power & Gender. 
(1)   Emotional support
(2)   Commitment
vi)    Culture/Race/Ethnicity/Class
b)      co-habitation (two persons of opposite gender.) 
c)      co-habitation (persons of the same gender, relationships) – and those that are “less than co-habitation.” 
2)      Three Periods of family law (Somewhat chronological, and overlapping.) 
a)      Traditional Law Period
i)        The state had a monopoly on:
(1)   determining the terms and conditions of marriage
(2)   allocating the benefits and burdens at dissolution of marriage.
(3)   State wants to protect core values
(4)   Keeping control of an internal social order 
(a)    State controlled interpersonal relationships. 
ii)      Power of the state came from police power. (Power to protect public welfare, health etc.) 
iii)    Entry into marriage:
(1)   State controls this stringently.  Terms on: kind ship of relationship, race,  gender, number of spouses, etc.
iv)    Spousal roles
(1)   Period was characterized by discrimination vs. women.  Spousal roles were strictly defined by the law.
(2)   Husband had duty of financial support, wife had duty of services to husband.  (Gender Defined.)
(3)   Husband was only spouse able to contract, women couldn’t hold property, sue etc.  Wife had no legal ability to deny sex to her husband. 
(4)   Husband had right to control community property and right to control wife’s earnings. 
(5)   K’s between spouses were almost non-existent. (Aka, K’s dealing w/ divorce. No such thing as anti-nuptial agreements.) 
v)      Divorce
(1)   Needed “fault” grounds for divorce.  Adultery need be proven, also cruelty, and abandonment.  The court ultimately decided whether the party had proved their grounds. 
(2)   Two Criterion:
(a)    Fault
(b)   Need
(3)   No real remedies at the end of the relationship.  Actually there were fornication statutes that subject those unmarried co-habitants to punitive sanctions.
(a)    (Exception) – CL Marriage. Very few states recognize this, 11.
vi)    Children:
(1)   Assumption that families were biological, children were considered the property of the fathers.  Custody went automatically to the fathers.  (Later moved to a maternal preference for custody. Based on stereotypical views of women and children.) 
vii)  1850’s: Married women’s property acts:
(1)   Gave women more rights than they had before, (State Laws.)
(2)   Women could now acquire, own and transfer property, make K’s, sue, keep their earnings, etc. 
viii)                                    Cohabitation: (not approved of during the traditional law period.)  
b)      Transition/Constitutional Law Period          
i)        1960s-1970s – Period of constitutional challenges to state laws/state action.
(1)   Question: Are the constitutional rights of individuals being violated?
(2)   Equal protection clause: 14th Amend. Important.  (i.e. Griswold v. Conn., Roe v. Wade etc.) 
(3)   State gave up the monopoly over the terms of dissolution of marriage.
ii)      Moved toward “No-fault” divorce.  (Decision to marry became more of a private decision.) Rep’d a change in societies values. 
iii)    Legal disabilities of children born outside of marriage – were done away with. 
iv)    Different custody rights/ adoption.  Spousal Torts immunities are done away with. 
(1)   Some things didn’t change:
(a)    Not until late 70’s, 80’s did the martial rape exception become struck down. 
(b)   In 1981, A state couldn’t constitutionally have a law that gave the husband legal control to community property.        
c)      Private Ordering Contract Period
i)        “Private Ordering Models” – More Autonomy (For persons to structure their personal relationships.)  – Period of transition and “confusion.”
(1)   Law struggles to keep up w/ rapid change in structure of society. 
ii)      Custody/divorce
(1)   Parties try to reach private decisions rather than having court step in. 
(a)    What about rights w/ respect to co-habitation for unmarried couples?
(2)   Think about what analogies can be drawn between divorce and no fault/tort.  (Divorce to an accident, didn’t expect it, but it occurred anyway.)  Family law should be geared toward planning for “economic loss.” 
(a)    Support and services are still considered the legal duties of spouses
(b)   Recently, they have been uncoupled from gender.  What are the implications of this?
(i)     Mediation introduced  
iii)    Much more discussion of K’s in the family: Marital, anti-nuptial 
(1)   Swing toward K model? Or should they be treated more like married couples as far as rights are concerned? 
(a)    Spouses of the opposite gender.  Serial “Monogamy” – one spouse at a time. 
(b)   Definition of “family.” à constantly changing.  Traditionally family is a ‘private’ institution.  
I.                    What is a Family
1)      Overview
a)      Principles of family law: common themes: protection of children and encouragement of marriage, regulation of sexual behavior, property. 
b)      Defining a family:  (General perspectives.)
i)        persons living together, permanence, economic dependence.
c)      Formal vs. Functional Definitions of Family
i)        Formal- 
(1)   Blood (Biological)
(2)   Adoption
(3)   Marriage
ii)      Functional- identified as having substantive family relationship
(1)   Interdependence
(2)   Financial support/ties/responsibility
(3)   Concern for emotional/physical well-being
(4)   Shared cultural understanding
(5)   Living Arrangements
(6)   Long-term commitment/duration
(7)   Love/Devotion
(8)   Childrearing 
2)      Two points of view:
i)        Complexities of family relationships
(1)   Organizing families around the idea of “care giving.”
(2)   Inevitable dependency, is where the benefits of family should flow from. 
(i)     What about those interdependent in all ways, but not having sex?
(3)   What does the role of sex play? 
(i)     Dependent when born as child, need care givers.
(ii)   Dependent elderly, who become inevitably dependent. 
(iii) Handicap/sick persons ..
ii)      Channeling function, the law essentially should shape people’s behavior into certain social structures. 
(1)   Will the law protect a particular relationship?
(a)    Definition of family depends on what the circumstances are, and who is the subject of litigation.   
(2)   Economics:
(a)    Support, from the state.  Considered a negative as opposed to be “expected.” 
(b)   Property ownership within the family, joint ownership.
3)      Non-Marital Relationships
a)      Baker v. State

ain occupants from the sudden loss of their homes 
ii)      Male partners living together met a significant number of factors: Ct looks to the “totality of the relationship”
(1)   Exclusivity, longevity of the relationship, level of emotional and financial commitment, manner in which the parties have conducted their everyday lives, held themselves out to society, and reliance placed upon one another for daily family services.  
(a)    These factors are viewed together by the court. A TOC test.
(b)   No real definition of family, depends on the legal definition between jurisdictions. 
iii)    Held: Within the context of rent control and eviction regulations, the term “family” will be interpreted to include those who reside in households having all of the normal familial characteristics.
(1)   Blood relationships are too restrictive for the law and could bring distant relatives to inherit property that is actually of family benefit. 
(2)   Ct uses FUNCTIONAL approach and rejects formal family definition. 
(3)   Ct looks to objective evaluations of relationships on a case by case basis because that best comports with the realties of family life (p.17).
(4)   Legislatures intent for “family” was for household residents w/normal familial characteristics.
iv)    Law might have particular goals/purposes to fulfill by providing definitions of family.
(1)   Advantages of “administrative convenience.” 
v)      Hypo: Would a brother and sister qualify as a family under Brashi?
(1)   Probably not, the court was likely considering something closer to marriage (a relationship with emotional and intimate aspects)
vi)    Hypo – B and B were heterosexual and decided not to marry?  Would court’s factors hold up?  Could go either way.
(1)   No- in hypo, couple has option of getting married and chose not to so the court does not have to give them these protections.  Ct. used functional equivalent because Braschi and Blanchard could not get married. 
(2)   Yes- even if they don’t want to get married, we should apply functional equivalent std because it is their choice and they still satisfy the other reqmts
b)      Evaluation of Functional Equivalence Model
i)        Problems w/ Model
(1)   Not clear on how to measure exclusivity and longevity
(2)   What is the cutoff for financial independence?
(3)   Prevents plurality of choice of different forms of relationships. 
(a)    By replacing formal standard with functional standard, we run the risk of reifying the same standards and channeling people into intimacy that looks like marriage. 
(4)   Over-inclusive-
(a)    People get benefits when they don’t really deserve them
(5)   Functional model can impose more requirements on unmarried couples than married persons (Ironic). 
ii)      Benefits of Model
(1)   Inclusive/Pluralistic
(2)   Includes persons not traditionally considered family.