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Family Law
Southern Illinois University School of Law
Hopkins, James

Fam Law
Spring 2011
1)       Marriage, Family and Privacy in Contemporary America
i)         The Relationship between Families and the Law
(a)     The Right to Privacy: 14th Amendment’s Due Process and Substantive Due Process.
a.        Specific guarantees in the Bill of Rights (fundamental rights) have penumbras; one of these penumbras is privacy.
b.       A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade area of protected freedom.
c.        Overly broad sweep of law which invades privacy is an unacceptable interference in a liberty interest regardless of whether it is fundamental.
d.       State law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy.
2.       “liberty” denotes, not merely freedom from bodily restraint, but also the right of the individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
a.        State ban on homeschooling/religious education unconstitutional.
3.       The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. 
4.       Cannot irrationally differentiate between married and unmarried persons. Shift from spatial to decisional privacy.
2)       Practice of Contemporary Family Law
i)         The Status and Conditions of Family Law Practice
ii)       Ethics in Family Law Practice
(a)     Ethical Foundations
(b)     Client Confidences
(c)     Conflicts of Interest
(d)     Obligations to Courts, Third Parties, and Opponents
(e)     Obligations to the Parties’ Children
1.       Obligations When Representing a Parent
2.       Obligations When Representing a Child
(f)      Domestic Misconduct by Lawyers
1.       Emotion and Lawyers’ Self-Representation in Domestic Relations Proceedings
2.       Domestic Misconduct by Family Lawyers Unrelated to Representation
(g)     The Relationship Between Ethics and Malpractice
3)       Entering Marriage
i)         Substantive Requirements for Entry into Marriage
(a)     The Ebb and Flow of Marriage Regulation
(b)     Traditionally:
(i)       Consent
(ii)     Age – Almost never the age of majority
(iii)    No bigamy
(iv)    No incest  (close familial ties; degree jurisdiction dependent but started w/ parent/child, aunt/uncle and a niece/nephew.
(v)     Less important where states recognized common law marriage:
1.       License – by state.
2.       Ceremony – Formal solemn memorial of contract.
(c)     The Right to Marry
1.       On equal protection grounds, the banning of interracial marriage is unconstitutional. Suspect class Req. state to have a compelling state interest and the law must be narrowly tailored to fit that governmental interest (strict scrutiny).
2.       On due process grounds the right to marry is a fundamental right therefore, the infringement of marriage is an infringement of a fundamental right under equal protection and due process subjecting the law to strict scrutiny.
a.       Failure to pay child support not a sufficient basis for the denial of the right to marry under due process grounds.  Instead, garnishments (tax return, bank), denial of state licenses (hunting, driving), denial of physical liberty (place in jail).
ii)       Same-Sex Marriage (No historical roots)
(a)   No fundamental right but, a liberty interest in the ability to engage in same-sex sexual activity between two adults in the privacy of their own home. Asserted state interest not  compelling.
(b)   Marriage /procreation/ childrearing = ok governmental interest but interest not narrowly tailored where same sex couples found to be able to rear children.
(i)      Have to be 18
(ii)    Anti-Bigamy: Can’t be already married or have a civil union.
(iii)   Anti-Incest even if formed by adoption.
(iv)  License provision.
(v)    Dissolution provision.
(vi)  Ceremony allowed but not required.
(vii) Reciprocity given to similar relations in another jurisdiction which so recognizes.
iii)     Polygamy (Prohibited – but, historical roots)
(a)    Individual prevented from having status of marriage with more than one individual NOT, from living with more than one individual.
(b)   The state may criminalize private intimate conduct that causes social or individual harm.
(i)      States can regulate marriage: Bigamy statutes.
(ii)    Degree to which state can intervene depends on the degree to which society is impacted by those relationships.
iv)     Incestuous Marriage (Historically prohibited for entire US history in every jurisdiction)
(1)    No suspect classàRational basis EP; No fundamental right (not in text of constitution; not deeply rooted in history/traditions). So, NO INCEST.
v)      Minimum Age at Marriage:
(1)    18
(2)    16 w/ parental consent or judicial approval
(3)    OR, some – younger where pregnant w/ approval from both a parent and a court.
(a)    Statutory rape law issues; in practice if consent to marry no one would prosecute?
vi)    Consent to Marriage*****
(a)    Void – even w/o request for annulment (ab initio – at inception).
(i)      Bigamy
(ii)    Same-sex (where prohibited)
(iii)   Incest
(iv)  Lack of capacity
(v)    Other statutory or legal reason parties can’t be married
(b)   Voidable – voidable requires court action: Annulment (none of the post marital divorce obligations.
(i)      Only a party to a voidable marriage can have that marriage declared invalid:
1.       Mental capacity (Intoxicated etc. but, question of fact and depends on degree etc).
2.       Party lacks physical capacity to consummate the marriage.
3.       Party underage (may later ratify)
(ii)    Mutual Assent and fraudulent inducement W/ the “essence of the marriage”
1.       Generally, the representation by one

e of the statutory exceptions.
4.       SCt has held that adult women have a right to an abortion under certain circumstances.
5.       Woman’s interest vis a vis the men is paramount because it is her body bearing the child…
a.       Health interest.
(b)   Minors – to protect pregnant minors from absolute vetoes by the minor’s parents the parental consent and notification statutes had to have some kind of judicial bypass through the courts without first consulting with or notifying the parents.
(c)    Casey’s Vitality
(d)   The Delegation of Medical Decisonmaking for Incompetent Adults
765 ILCS 4025 – If the adult lacks decision-making capacity the health care provider must first determine whether the person has a power of atty per the probate act.
Options: I do not want my life to be prolonged if agent believes burden outweighs expected benefits.
I want life prolonged and want life-sustaining treatment to be provided unless in a coma and attending  physician says believes be irreversible…
                Doctors are divided as to what an irreversible coma is.
I want life to be prolonged to the greatest extent possible w/o regard to condition.
755 ILCS 40 – Order of decision making authority.
        Patient’s guardian
                        Adult son or daughter of the patient
                        Either parents
                        Adult Brother or sister
                        Close friend
                        Guardian of the estate.
iv)     Interspousal Support Obligations
(a)    The General Support Obligation
1.       The Traditional View of Support Obligations – @CL, husband had an obligation to support his spouse but, courts would not look into this beyond a certain point.
i.         Duty to support wife exists after marriage. Courts are then called on to examine finances…
b.      Spousal maintenance allowable if they separated at fault of husband but not otherwise. The court will not reach into the home to decree the way that finances should be spent.
(b)   The Necessaries Doctrine
(i)      To compensate for wife’s legal disabilities during marriage, the necessaries doctrine allowed her to buy necessities from a 3rd party using her husband’s credit.  If the husband refused to pay, the creditor could sue the husband for the debt.
1.       The definition of what constituted a necessary depended on the family’s social position and was limited by the husband’s ability to pay. (food, shelter, clothing)