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Family Law
St. Johns University School of Law
Grogan, Teresa J.

Family Law Outline


Summer 2011

I. Privacy

a. Griswold v. Connecticut – Appellants convicted as accessories for violating Connecticut statute against preventing conception. First Amendment privacy

i. Privacy in the First Amendment – Association. Privacy makes First Amendment rights meaningful.

ii. Third, Fourth, Fifth, Ninth Amendments all have privacy issues

iii. Court held married people are allowed a level of privacy. Unconstitutional to arrest people for distributing contraceptives.

b. Eisenstadt v. Baird – If Griswold allows distribution of contraception to married people, then the equal protection clause allows distribution to unmarried individuals. No rational, legitimate state interest for applying it to one group and not the other. Whatever the right of the individual to access contraceptives may be, the rights must be the same for the married and unmarked alike.

c. Meyer v. Nebraska – Liberty under the Fourteenth Amendment is:

i. Freedom from bodily restraint

ii. Contract

iii. Engaging in an occupation

iv. Acquiring useful knowledge

v. Marrying

vi. Establishing a home

No legitimate state interest in prohibiting young children from being taught foreign languages.

d. Pierce v. Society of Sisters – Parents should have a right to choose where they want to send their child to school. Argued Fourteenth Amendment. States can:

i. Regulate schools

ii. Inspect schools

iii. Supervise schools

iv. Examine schools, teachers, and pupils

v. Require children of proper age to attend children

vi. Require teachers to be of good moral character and disposition.

vii. Can’t force children to go to a particular school

e. Roe v. Wade – First trimester state can’t abridge a woman’s right to privacy to have an abortion. Second trimester the state’s interest in the health of the mother. Third trimester – states interest in protecting potential life at the stage of viability.

i. Privacy is not in the constitution.

f. Gonzales v. Carhart – Doctors are not allowed to perform partial birth abortions because the government has a legitimate and substantial interest in preserving and promoting fetal life. The Act expresses respect for the dignity of human life. It is the lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Alternatives are available to the prohibited procedure.

g. Lawrence v Texas – Adults may chose to enter upon homosexual relationships in the confines of their homes and their own private lives and still retain their dignity as free men. A state statute prohibiting sexual relations between people of the same sex is not constitutional

h. Planned Parenthood v Casey – A state statute requiring a married woman to get her husband’s signature before getting an abortion is not constitutional. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

i. Cinci Women v Taft – : If a state requires parental consent before an unemancipated minor woman receives an abortion, it must provide for a judicial or administrative procedure so that a minor woman who satisfies certain conditions may bypass the consent requirement. If a minor woman establishes that she is mature enough and well enough informed to make the abortion decision independently or that the abortion would be in her best interest the reviewing court or agency must issue the bypass.

II. Jurisdiction

a. Family court has jurisdiction over all matters except matrimonial matters

b. Criminal court has jurisdiction over orders of protection and family offenses

c. Supreme court has jurisdiction over matrimonial matters

d. Surrogate court – Adoption and guardianship

e. FCA §812 Defines who can get orders of protection. Members of the same family or household means:

i. Persons related by blood

ii. Persons legally married

iii. Persons formerly married

iv. Persons who have a child in common

v. Person not related by blood or marriage, and who are or have been in an intimate relationship whether or not they live together.

III. Marriage as a Contract

a. Marriage contract is not negotiable. Civil contract, consent by both parties.

b. Domestic relations law (DRL) §10 – Marriage continues to be a contract

c. Breach of Promise to Marry

i. Civil Rights Law §80-a – No action for breach of promise to marry

ii. Weicker v. Weicker – Cannot sue for alienation of affection.

iii. Tuck v. Tuck – Actionable because there was a fraud involved. An action for deceit will lie where the defendant has induced the plaintiff to marry and cohabit with him on the fraudulent representation that he was unmarried.

iv. Civil Rights Law §81 – Cannot commence an action for breach of promise to marry

v. Civil Rights Law §82 – Can’t try to settle a breach of promise to marry

vi. Civil Rights Law §83 – Felony to violate the above statutes

d. Parker v. Hoefer –New York must give full faith and credit to a foreign judgment, notwithstanding that the underlying claim would not be enforceable in the state.

e. Neporany v. Kir – New York will recognize and enforce private rights acquired under valid foreign judgments provided they are jurisdictionally well founded and not contrary to public policy.

f. In re Benintendi’s Estate – A person who obtains a divorce that is invalid can be held liable for fraud when they marry someone else.

g. Gifts in Contemplation of Marriage

i. Civil Rights Law §80-b – A gift given in contemplation of marriage must be returned if the marriage is called off, irrespective of fault.

ii. An engagement ring is in the nature of a pledge for the contract of marriage and where no impediment existed to marriage, if the recipient broke the engagement she was required to return the ring because it constituted a conditional gift. However, when one of the parties is already married, the agreement is void.

iii. Gaden v. Gaden – A person who buys property in anticipation of marriage under both parties names, must give the other party their interest if that party breaks off the marriage. Fault is irrelevant

h. Premarital Contracts

i. Simeone v. Simeone – Prenuptial agreements are contracts, and as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreement.

ii. In re marriage of Shanks – A prenuptial agreement is valid when one party is an attorney, and urged the other to get independent legal advice, but they did not. Courts should resist the temptation to view disparity between the parties financial circumstances as requiring a finding of substantive unconscionability.

iii. General Obligations Law §5-311 – Cannot make an agreement other then a divorce that would relieve a spouse from the liability to support the other


Marriage is voidable if consent was by force, duress, or fraud

iv. DRL §140(e) – Can annul marriage if consent was obtained by force, duress, or fraud.


m. Names

i. DRL §15(2)(&(3) – Do not have to change name at marriage but can. Can only change to last name of other person, a former surname, a combination surname, or a hyphenated surname

ii. DRL §15-a – Prohibited to issue a marriage license to anyone under age of 14

iii. DRL §140(b) – Can annul a marriage when one of the parties is not of the age to consent. Party, parent, guardian or friend can move to annul.

iv. Cunningham v. Cunningham – Valid marriage in New Jersey, but the husband took the underage girl there without parent’s consent. Marriage was voidable.

v. Henne v. Wrught (8th Cir) There is no American tradition to support the extension of the right of privacy to cover the right of a parent to give a child a surname with which that child has no legally recognizable parental connection.

n. Fraud & Duress

i. Woronzoff – Marriages can be annulled not for any and every kind of fraud but for fraud as to matters vital to the marriage relationship only. A mistake, whether resulting from accident, or, in general, from fraudulent practices in respect to the character, fortune, health or the like does not render void what is done.

Can be a gold digger, but can’t be a liar.

ii. CPLR §214(7) – Annulling a marriage for fraud must be commenced within 3 years (from time the plaintiff discovers facts constituting the fraud)

iii. Can also annul for lack of consent/fraud for these:

1. Mental Defect

2. Physical Capacity

3. Incurably mentally ill for five yrs or more

4. Ability to consent

o. Procedural Resrictions

i. DRL §11 – Marriage can only be solemnized by religious leader, mayor, judge, or written contract

ii. 12 – Parties must solemnize in the presence of at least one witness in addition to clergyman, or magistrate

iii. 13-aa – Sickle cell anemia

iv. 13-b –

v. 25 –

p. Proxy marriage – Marriage through an agent

i. DRL §12 – Can’t get a proxy marriage in New York, need to be there

ii. Fernandez v. Fernandez – If proxy marriages are valid in another jurisdiction, will be recognize in New York.

q. Community property

i. NY: Separate property shall remain separate

ii. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.

iii. DRL §236B(1)(d) – Separate property means: Property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse

iv. In determining an equitable distribution of propertycourt shall consider the following: