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Family Law
Southern Illinois University School of Law
Upchurch, Angela K.

Family Law
Professor Upchurch
Fall 2014
–          Dynamic area of law, ever-changing.
–          IL family code will be used as an example
o   Bar preparation
§  MEE questions
·         ILL uses IL law and MEE questions
–          Complex area of practice
o   Overlap in many areas
Introduction to Family Law:
–          Marriage, divorce, property dissolution, child custody & visitation, support, adoption & ART
Cohabitation: A view of the U.S.
–          In 2010 It was reported that unmarried couples made up 12.2 percent of couples in U.S.
–          Approx. 7.5 million were opposite sex couples and 620k same sex.
–          People are increasingly cohabitating.
Marvin v. Marvin:
                1976 landmark decision. Where the phrase “palimony” comes from. Plaintiff brought suit to enforce oral agreement. California court found that partners in nonmarital relationships may bring claims for property division based on both express and implied contracts. Can’t enforce express contract that contemplates meretricious sexual services.
                Finding an Implied Contract between Cohabitants
1.       Continuous cohabitation
2.       Intent of the parties
3.       Comingling of funds
4.       Duration of the relationship
5.       Purpose of the relationship (to be one in an intimate partnership)
On remand, the trial court ruled:
–          No express contract
–          No implied contract
–          Dismissed quantum meruit claim
o   Nonetheless, the court award her 104k
o   Court of appeals reversed
Hewitt v. Hewitt:
                They were married for 15 years, with 3 children. No ceremony, or marriage. They held themselves out as a married couple. Illinois. Sup. Court holds no recognition of rights of unmarried cohabitants through marvin-style contracts.
                Three big reasons:
–          Public policy concerns
o   Weaken marriage
o   Impact other legal decisions: inheritance, wrongful death actions, workmen’s compensation.
o   Parental rights
o   Child welfare (social and psychological effects)
o   General welfare of the citizens of the state
–          Public policy is best dealt with by legislature
o   Considers Marvin court to be naïve- These K’s are based on a sexual relationship lets face it.
o   Better able to determine impact on society and evaluate social mores
–          Legislature clearly suggests not permitted
o   No common law marriage
o   No no-fault divorce at the time. Means you had to identify grounds to leave
o   Limitations on private contracts in marriage altering legal rights
o   Recognition of putative spouse doctrine
Look at Question 1 and Question 2 Judy and Wesley. Handout
Pre-marital Agreements:
–          “An agreement between parties contemplating marriage that alters or confirms the legal rights and obligations that would otherwise arise under applicable law”
–          If you don’t have a prenup you go through default rules of whatever state the dissolution is in.
–          You can’t bind custodial decisions, support decisions, etc. for children in prenups.
–          It’s mostly to affect inheritance to children (possibly keeping it form the new wife).
–          Necessary if someone owns their own business.
Uniform Premarital Agreement Act:
–          Formalities:
o   In writing and signed.
–          What can be consented to?
o   Property rights
o   Disposition of property upon separation, divorce or death
o   Spousal support (including waiver)
o   Testamentary documents
o   Death benefits
o   Choice of law
o   Catch-all (not in violation of public policy)
o   NOT: child support, custody,  visitation etc.
–          Enforcement:
o   E

e), does it create a substantial injustice? Is the contesting party essentially stripped of all marital interests?
Hood v. Hood:
Guy asked to go down to the courthouse the next day but has a prenup already drafted by his lawyer. Then he finds her another attorney but he’s right outside the door with it open and 10 ft. away. She signed it anyway. App court doesn’t substitute its judgment for that of the trials courts so they found that the trail court could have reasonably found for all of the factors.
Drafting Considerations:
–          Know the law of your jurisdiction well
–          Determine your client’s individual goals, expectations and concerns
–          Clarify limits of the prenuptial agreement
o   Cannot do child custody, etc.
o   Cannot realistically regulate marriage life (cook for me, sex me, etc.)
o   Typically cannot enforce “at fault” penalties
–          Ask if they have significant connections with another state or can foresee establishing residence elsewhere.
–          Do not guarantee enforcement
Short list of rules for marriage in U.S. history:
–          Consent
–          Minimum age
–          Not already married
–          No incest
Early prohibition of interracial marriage. By 1930 there was a concern for public health. Denying marriage to persons with epilepsy, TB and a few other diseases.
Post WWII, we see a deregulation of marriage. Roll back on age restrictions, abandonment of mandatory health screenings. Repeal of moral purity laws.