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Family Law
St. Johns University School of Law
Scheinkman, Alan D.

Family Law
Fall 2010
How to Define a Family Relationship
Family Defined
Family means whatever legislature says (can limit the definition of “family” as long as it is not unconstitutional)
Example: Family means people related by blood, marriage or adoption is ok
Example: Family means people who have a long term relationship and is characterized by an emotional and financial commitment and interdependence.
Domestic Partnership
NY does NOT have a domestic partnership, but NYC has some domestic partnership provisions (state has ability to determine what type of relationships exists and how to dissolve them, not cities)
NY: not limited to same-sex couples
CA law: if you want to be a domestic partner and get benefits, then you need to register yourself and meet certain criteria; can only have one domestic partnership, must be 18; must be same sex or opposite sex couples over 62.
If you want to get out of it, both people can sign off on a termination notice that gets filed, or it can be done unilaterally by the giving of 6 months notice.
Important Note: Marriage viewed as STATUS created and regulated by law.
There is no common law of divorce.
Marriage historically viewed as a religious matter.
Strong religious component.
Marital issues were handled by ecclesiastical courts
Constitution permits freedom of religion, not freedom of action.
Can limit marriage to just one man and woman.
Note: Government CAN prohibit religious actions. (People can have their religious beliefs but cannot always act on them)
Marriage laws got created through statute
Statutes were rudimentary
Aimed at punishing wrong-doing
Maynard v. Hill (1888):
Marriage is looked at as a CIVIL CONTRACT.
Once the relationship between the parties is created, they cannot change it themselves. Once formed, the law steps in and holds the parties to various duties, rights and obligations.
DRL §10
Once the relationship is formed, because of the state’s public interest in the morals and well-being of its inhabitants, the state is free and obligated to regulate the parties.
Fisher v. Fisher (1929)
At the time, the only ground for divorce was adultery.
Facts: One party had been divorced (was an adulterer). NY had a law that if a person was guilty of adultery, that person could not marry again. So they got on a steamship to get to international waters so that they could be married.
Note: According to common law, marriages that rest on consent are valid marriages.
Issue: Whose law applies here?
The ship is in international waters, so NY law cannot apply because it was not in NY waters.
Rule: The ship is presumed to belong to the state in which it is registered
Constitutional Issues
You do have freedom of religion, but laws CAN interfere with your right to practice your beliefs or behave in a certain way. (Reynolds v. US)
DRL §253: Removal of Barriers to Remarriage
Jewish Religion:
To clear barriers for remarriage don’t have to promise to go to a religious tribunal
Marriage is a contract and under it the husband promises to support wife for life and wife promises to be the husband’s exclusively for life. A Jewish wife was not able to obtain a religious divorce unless husband was willing to release her from being his. In this marriage contract, there is a ghet which is a provision saying if our marriage is in trouble, then we will go to the rabbinical court. Many husbands used it as blackmail against their wives so they wouldn’t be able to remarry in a synagogue. (Avitzur v. Avitzur, 1983)
Important Note: If you’re looking for a divorce, you MUST promise to clear the barriers to remarriage otherwise the court will deny the secular divorce until the religious aspect is done.
Any party to a marriage who commences a proceeding to annul the marriage or for a divorce must allege in the verified complaint, to the best of their knowledge:
That the person has taken or will take prior to entry of final judgment
All steps solely within their power to remove any barrier to the defendant’s remarriage or
The defendant waived in writing the requirements of this subdivision.
Note: Barriers also include the Jewish issue of the ghet.
Serious issues as to whether this statute is constitutional:
Lower courts don’t think so. Possibly undue intrusion into religious practices.
Right to Privacy in Marriage
There is a zone of privacy in a marital relationship.
Griswold v. CT:
Statute prohibited prescription of contraceptives. Statute struck down because of right to privacy in marriage.
Eisenstadt v. Baird:
Right to privacy is the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear a child.

ike a corporation because it is a fictional entity.
Common law marriage: man spoke for the marriage.
Unmarried women had more rights when single than when they were married.
Any COA lay into in with the husband.
Prior to marriage, a woman could enter into contracts, BUT once married, she lost all rights.
Married Women’s Acts
Married women shouldn’t lose their rights just because married.
What did this act do?
Gave woman right to sue and be sued.
NY intra-family tort immunity was abolished.
Married women can enter into contracts with their husbands.
Fault has to be established to get a divorce
One fault ground is “cruel and inhuman treatment”
This includes acts of physical violence or verbal torment committed by one spouse against another.
Prenuptial Agreements
Agreement made before marriage. When people get married they become one legal person.
Before the adoption of Married Women’s Act there was no pre-nups.
Prenuptial Agreements and Common Law
Common law didn’t like pre-nups.
Why? If the purpose of the pre-nup is to make it easier for you to divorce, then these agreements are violative of public policy.
Why are more countries recognizing prenups?
Chance of divorce is high and rising.
Requirements for Prenuptial Agreements
Requirements for prenuptial agreements:
Reasonable and
Note: You must know what you are giving up.
Ex: Husband told wife that he had no money, but was lying and wife signed the pre-nup. The contract was thrown out because of fraud.
Burden of proof: on the attacker of the contract.
Presumption: agreement is questionable when the agreement provides for a COMPLETE waiver with no rights for survivor and deceased had a lot of money and there was no independent attorney.
Factors that raise questions: (1) complete waiver; (2) no independent attorney. (check for other factors in outline)