Fall 2013 (St. Romain) Family Law Outline:
Part I
INTRODUCTORY ISSUES:
Formation of Marriage; The Constitutional Right to Marriage; Marital Obligations and Duties; Domestic Violence
Formation of Marriage:
a. Procedural Requirements:
i. Licensure:
1. Many states impose a waiting period between application for and issuance of the license or issuance of license and ceremony (NJ: 72 hr. waiting period between license and ceremony).
2. Most states require physical exam before license is given.
3. See below for consequences to violation.
a. However, regardless, those who perform wedding ceremonies in violation of these requirements may be violating criminal law.
ii. Solemnization:
1. Model Marriage and Divorce Act: By a judge or other authorized public official, or in accordance with recognized religious mode of solemnization. Also permits solemnization by proxy.
b. Substantive Requirements:
i. Consent:
1. No fraud/duress/incapacity/undue influence.
2. Duress: Voidable: E.g., physical abuse, etc.
3. Can overcome by later ratifying.
4. Capacity to consent (“of sound mind”): the ability to comprehend the nature of marriage and the duties and responsibilities attendant thereto.
5. No fraudulent inducements/material misrepresentations causing consent (these are usually voidable though).
a. Misrepresentations concerning wealth, temper or character not usually grounds for annulment.
b. Misrepresentations concerning fertility, willingness/ability to have sex do go to the “essentials.”
i. Many courts apply the “essentials test.”
ii. Some courts apply this test using a subjective test.
6. Scope of consent: No “limited purpose marriages” – i.e., claim that no genuine marriage was intended (e.g. sham marriage for immigration status).
a. This attack usually brought by the government.
b. Courts in the immigration area have focused on intent: do these parties intend “to establish a life together.
c. Difficult to show.
d. Most courts hold that state family law and federal immigration law can reach different conclusions as to a marriage’s validity.
e. Immigration Marriage Fraud Amendments of 1986: An alien married to a citizen for less than two years is granted conditional status with reexamination of the marriage’s bona fides after two years—if the marriage takes place during deportation proceedings, however, the alien must leave the U.S. for two years before obtaining conditional status (these have since been loosened).
ii. Age (four general types of restrictions):
1. Age of consent when a person may choose to marry without consultation or permission of anyone.
a. Most states: 18 and above.
2. Age where marriage is permitted with approval of a parent/parent-substitute.
3. Age below that of parental permission at which—barring exceptional circumstances—marriage is not permitted.
a. Need a judge, usually for the bride’s pregnancy.
4. Minimum age of “marriageability.”
a. Very few states have a true floor that would automatically render a marriage void.
iii. Consanguinity (blood relation):
1. Model Marriage and Divorce Act prohibits: (1) ancestor/descendant, (2) siblings (half, whole, or by adoption), (3) uncle/aunt—nephew/niece (half or whole, except those permitted by aboriginal custom).
2. All states void marriages between siblings/parents-children/grandparents-grandchildren.
3. May also involve criminal violations.
4. Currently, half of all states permit marriage between first cousins.
5. Vast majority of states render these “marriages” void.
iv. Affinity (relation by marriage):
1. I.e., step and in-law relationships.
2. 15 states forbid certain affinial marriages.
a. Some of these continue the prohibitions even after the underlying relationships are dissolved.
v. Polygamy/bigamy:
1. In most states, this is also criminal.
vi. Gender (though, obviously, this is changing).
c. Violation of requirements (courts/states confuse these):
i. Void: No judicial pronouncement needed; marriage can be challenged by 3rd party; no “consequences of marriage.”
1. Result of violating substantive requirements.
ii. Voidable: Valid until court pronouncement/annulment; only a party to the marriage can attack it; marriage can be ratified; possible “consequences of marriage.”
1. Generally, result of violating procedural requirements.
2. State v. Denton (WA 1999): Couple didn’t procure license (though was solemnized in a church). H was seeking spousal testimonial privilege—which the state wasn’t honoring because of procedural violation.
a. Majority rule: Marriages without licenses are valid unless there is an express declaration by the legislature that such marriages are void.
b. Minority: Such marriages are void, even if there was a ceremony and a lengthy relationship.
d. Marital communication privilege:
i. Criminal defendant has a privilege to prevent spouse from testifying as to any confidential communication between the accused and spouse.
1. Exceptions: Where one spouse is the victim of another; actions against third parties for injury to the marital relation; divorce; litigation involving protection of the child.
ii. Trammel v. United States (SCOTUS 1980): Aside from marital communications (see above), for (1) non-communicative evidence of criminal activity and (2) communications made in front of third parties:
1. One spouse may choose not to testify against the other. But the testifying spouse cannot be prevented from testifying by the accused spouse.
e. Common Law Marriage (only 10 states still permit this):
i. If common law marriage is satisfied when one spouse is already married:
1. If either party is ignorant of this “impediment” at the creation of their relationship, there is marriage upon the impediment’s removal.
2. If both knew of the impediment, upon the impediment’s removal, many courts (but not all) require proof of renewed agreement.
ii. Conflict of law: Marriages valid where contracted are usually recognized elsewhere. What about common law marriages?
1. Live/agree/holdout in non-recognizing jurisdiction, go to recognizing jurisdiction (even for a short while), and return: Most courts: Marriage.
2. Live/agree/holdout in recognizing jurisdiction, go to non-recognizing jurisdiction: Most courts: Marriage.
3. Live/agree/holdout in non-recognizing jurisdiction, go to recognizing jurisdiction (Travers v. Reinhardt (SCOTUS 1907)), even if no proof of new agreement, there is a common law marriage.
iii. In re Estate of Hall (Ohio 1990): Efforts made to limit the comingling of finances (separate checking accounts, non-marital status on tax returns, etc.) showed that there was no common law marriage. More importantly, here was no present agreement to marry—only a future intent to do so.
1. Without a contract of marriage, need either (1) direct evidence to show agreement or (2) proof of cohabitation, acts, declarations, and conduct of the parties.
iv. Where same-sex couples cannot create ceremonial marriages, can’t create common law marriages.
v. No such thing as “common law divorce.” Once married (ceremonially or via common law), need an actual divorce.
vi. Usual modern requirements (a few states are less stringent):
1. Agreement.
2. Clear and convincing evidence.
3. Public declaration.
4. Continuous cohabitation.
f. Putative Spouse Doctrine:
i. Protects a party ignorant of an impediment to the marriage’s validity (i.e., other marriage). In other words, helps avoid bigamy.
ii. This doctrine causes putative spousehood to be terminated upon a party’s loss of a good faith belief that he or she is married—no divorce necessary as putative spousehood (unlike, e.g., common law marriage) is not a marriage.
iii. In re Estate of Vargas (CA 1974): A putative spouse is an innocent participant who has a duly solemnized matrimonial union—that is void because of some legal infirmity.
1. Here, two different legal theories to justify the division of property to a putative spouse: (1) “Quasi-marital property” that is given community property status or (2) putative marriage treated as a partnership, with property held as tenancy in common.
a. Courts generally rely on principles of equity even where the facts of a case don’t neatly fit into either theory. A putative spouse had a good-faith belief—and should be protected.
g. Presumption of the validity of the latest marriage: Thus, the party asserting bigamy faces the difficult task of provide a negative: the non-dissolution of the first marriage.
i. Some courts impose a strong presumption, others a weak one, and others none at all.
The Constitutional Right to Privacy and Marriage/Substantive Restrictions on Marriage/Marriage Equality:
h. Evolution of the Right to Privacy:
i. Meyer v. Nebraska (SCOTUS 1923): Court struck down prohibition against teaching German to children. Liberty, as guaranteed by the Constitution, includes “not merely freedom from bodily restraint but also the right of the individual to…marry, establish a home and bring up children.”
ii. Pierce v. Society of Sisters (SCOTUS 1925): Court struck down requirement that Oregon students attend public, rather than private, schools: “[T]he Act…unreasonably interfere[d] with the liberty of parents…to direct the upbringing and education of their children.”
use both sexes are treated equally).
iii. Baker v. State (VT 1999): Same-sex couples may not be deprived of statutory benefits and protections afforded opposite-sex persons. Can have “alternative legal status.”
1. In 2009, however, Vermont enacted legislation legalizing same-sex marriages.
iv. Varnum v. Brien (Iowa 2009): State defended statutory ban on same-sex marriage because of (1) maintaining traditional marriage, (2) promotion of optimal environment to raise children, (3) promotion of procreation, (4) promoting stability in opposite-sex relationships, and (5) conservation of resources.
1. Court held that the statute failed under intermediate scrutiny. The statute did not substantially further state objectives (really about religious motivations).
2. Creating a new separate legal status for LGBT relationships would also be suspect (rejecting Baker and Lewis I). Thus, the court ordered the language limited marriage to between a man and a woman be struck.
v. Lewis v. Harris (NJ 2006): Court separates rights “to” marriage and rights “of” marriage. No fundamental right to same-sex marriage based on history/traditions/conscience of the people (NOTE: Had they broadened the inquiry to ask about a fundamental right to marriage in general, they could have held differently).
1. But unequal dispensation of rights/benefits violates the Equal Protection Clause of the NJ Const. But can solve this wish a separate, but equal scheme for same-sex couples—doesn’t need the label.
2. Dissent: Why without the label for any other reason beyond animus and social stigma.
3. Like the Vermont approach in Baker v. State.
4. After DOMA, NJ permitted same-sex marriage because civil unions did not provide the same rights “of” marriage as did opposite-sex marriage (because federal benefits only apply to spouses/marrieds).
vi. NOTE: Many opponents of the anti-gay lobby opposes the institution of marriage altogether and would prefer it be eliminated entirely.
vii. Hollingsworth v. Perry (SCOTUS 2013): Prop. 8 banning same-sex marriages was held by the district court in CA to violate the 14th Amendment of the US Const. Doesn’t serve any other purpose than to lessen status and human dignity of LGBT community. 9th Cir. agreed. SCOTUS punted on the substantive issue—but held that the appellants didn’t have standing to appeal—effectively allowing same-sex marriage in CA over the mandate of Prop. 8.
l. Conflict of Law Issues:
i. Generally, a marriage is valid everywhere if it’s valid under the law of the state where it took place.
1. Public policy exception: If a state finds the marriage offensive to deeply held public policy.
2. Minority exception: If a domiciliary marries in another state to avoid a rule disallowing the marriage in his home state.
m. DOMA: Defense of Marriage Act:
i. In fear that the Full Faith and Credit Clause might require all states to recognize same-sex marriage legally contracted in one state, Congress passed DOMA.
ii. Defined marriage as the legal union of one man and one woman for federal and inter-state recognition purposes. No federal recognition of same-sex marriages.
iii. United States v. Windsor: § 3 of DOMA (the above) unconstitutional. Federal government must recognize same-sex marriages that are approved by the states. However, what, exactly, was the constitutional basis (whether Due Process, Equal Protection, federalism, etc. is unclear).
n. Formal Status Alternatives to Marriage:
i. Many variations and permutations of schemes (nevertheless, trend toward extending legal recognition to non-marital partnerships is proceeding with substantial momentum).
ii. Called “domestic partnerships,” “civil unions,” and “reciprocal beneficiary relationships.”
iii. Began to emerge in 1980s. Sometimes as a result of court mandates, other times simply public advocacy groups.
