FAMILY LAW – Ziegler, Spring 2012
Introductory Information
Marriage has become privilege reserved for educated and more well-off
Increasingly poor non-white people are not marrying but are having children in their relationships, which vary in length
Changing nature of the family – what do we do with it?
Possible relationships between law and family
1) Law should change to reflect the changing realities of family life
2) Law should create incentives for people to form more stable or desirable families
3) Law should mostly leave family life private and untouched by state regulation
Important in domestic violence law, marriage
What do we know as a family?
Procedures for entry into a marriage
Annulment
How to petition for one?
Why would you strategically choose annulment rather than divorce?
Substantive requirements vs. procedural requirements
Cannot be same sex, related by blood to a certain degree, monogamy, of a certain age
Intact marriage
Spousal abuse – domestic violence – orders of protection
Degree of contracting
Divorce
What it looked like in the past
Used to have to have a fault-based ground for divorce with only one person messing up
If both ppl cheated, you had to stay together
Prevailed in MO & US until 1940s
1970s – variations on no-fault divorces
Who gets the money after divorce?
How is marital property divided?
What constitutes marital property?
Debt?
Goodwill of business?
Retirement fund?
Law degree?
Alimony
Child Support
Children's rights
Parental rights
MO perspective & Constitutional perspective
Custody
Alternative reproductive technologies
At least 1% of children born this year
Nobody knows who the parents are – the sperm donor?
Do surrogates have rights?
Different ethical challenges in family law
More emotions/drama
Alternative Dispute Resolution, mediation, collaborative practice, arbitration
Braschi v. Stahl Associates Company
Appellant Braschi was life-partner with Blanchard
Only Blanchard was the tenant of record
Appellee landlord wanted to evict Braschi b/c he was not the tenant of record
Rent Control – looking to make a lot of money after kicking him out of the apartment
Braschi seeking injunction saying that he should be able to keep the apartment
Definition of what is a “family member” – 9 NYCRR 2204.6(d) does not define it
Landlord wants it to follow intestacy laws – by which property passes if no will is made before death
To mean relationships of blood, consanguinity and adoption in order to effectuate the over-all goal of orderly succession to real property
They could not be married in 1989 in New York
Would want to use these definitions – comports both with our society's traditional concept of “family” and with the expectations of individuals who live in such nuclear units
Consistency of definition of family across bodies of law
Decrease likelihood of fraud
Preserve the sanctity of marriage
Keep the benefits of marriage to those who abide by society's rules
Court uses Webster's Dictionary definition of “family”
“group of people united by certain convictions or common affiliation”
Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics
This definition is consistent w/ competing purposes of rent-control laws:
The protection of individuals from sudden dislocation and the gradual transition to a free market system
Court: Determination as to whether an individual is entitled to noneviction protection should be based upon objective examination of relationship of the parties
1) exclusivity and longevity of the relationship
Swingers would be excluded
2) level of emotional and financial commitment
3) manner in which the parties have conducted their everyday lives
4) held themselves out to society
5) reliance placed upon one another for daily family services
Held: Braschi & Blanchard lived together as permanent life partners for more than 10 years, shared accounts, families considered each other as part of families
New relationships would be excluded
They didn't have the opportunity to marry then; they would now; if they were to elect not to marry in today's world when they have the opportunity, the court could use that as a factor against them
Braschi is about an alternative to marriage
It shouldn't matter if you want to marry if you satisfy these criteria
DISSENT:
Criticism of Braschi: The class is expanded indefinitely to include anyone who can satisfy an administrator that he or she had an emotional and financial “commitment” to the statutory tenant
Very progressive court making decisions that are made for the legislature and the voting public, not the court's responsibility
City of Ladue v. Horn
Ladue's zoning ordinance: certain zones designated as one-family residential; defines 'family' as “one or more persons related by blood, marriage, or adoption, occupying a dwelling unit as an individual housekeeping organization”
Defendants who shared home were not married, shared a common bedroom, maintained a joint checking account for the household expenses, ate meals together, entertained together, disciplined each others' children, including 16 year old kid who appears to still live in the house and some older college kids not there together
Argument 1: we are a “conceptual family”
They cohabit and are the “functional and factual equivalent of a natural family”
They could have gotten legally married, though
We know nothing about exclusivity or longevity, either
We don't know if there is a major commitment
COURT: A man and woman living together, sharing pleasures and certain responsibilities does not per se constitute a family in even the conceptual sense; There must exist a commitment to a permanent relationship and a perceived reciprocal obligation to support and to care for each other
No 'power of attorney' present; even if there was, it is revocable; even that relationship is not intimate
It would be hard to ever satisfy the definition of 'functional family' for this court
Argument 2: even if we aren't a family, we have a constitutional right to live here b/c Ladue's zoning code violates their rights
Court: generally, federal court decisions hold that a zoning classification based upon a biological or a legal relationship among household members is justifiable under constitutional police powers to protect the public health, safety, morals or welfare of the community
Strict Scrutiny – kicks in if:
1) Fundamental right
2) Suspect Classification
Identifiable and distinct minority historically subject to discrimination
Racial minorities, national/ethnic groups
Government's purpose must be very important, compelling; means must fit very well with the ends
SCOTUS: if the personal interest affected by the ordinance is fundamental, “strict scrutiny” is applied and the ordinance is sustained only upon a showing that the burden imposed is necessary to protect a compelling governmental interest; if the ordinance does not contain a suspect class or impinge upon a fundamental interest, the more relaxed “rational basis” test is applied and the classification imposed by the ordinance is upheld if any facts can reasonably justify it
Court: Previous decisions upheld if it is reasonably related to a permissible governmental objective; if it constituted valid land use legislation reasonably designed to maintain traditional family values and patterns
East Cleveland, by restricting the number of related persons who could live together, sought “to regulate the occupancy of its housing by slicing deeply into the family itself”; deeply rooted trad
“directory”, rather than “mandatory”
o Rationale being only having license be directory (suggested) and not mandatory (required): unfair to the parties if they have been cohabiting and acting as married, defines their expectations, prevents one from saying the marriage was void after being married for some time
Lutwak v. United States
o “War Brides Act” – Spouses of veterans could enter the US
o Not cohabiting
o Polish refugees living in France
o 3 petitioners agreed to come to marry the refugees in France to get the immigrants into the US; They never intended to live together, have children, etc
They didn’t tell anyone they were married and planned to dissolve the marriage immediately
Their sole purpose was to get the refugees into the country.
It’s a criminal conspiracy case
What’s the argument that they are married?
o They went through the ceremony—validly married under French law.
o The marriage wasn’t declared void for incest or bigamy, etc.
o It was the same law in France
o Marriage is a legal status/contract that is validated by a marriage ceremony.
o We don’t have any other requirements
Court is getting their common understanding of a marriage out of nowhere – Looks like Judicial Notice
The couples got married with no intention to live together or stay together at all
INS is now allowed to do a lengthy investigation to ensure marriages are valid
Coverture: Former common law regime whereby legal identity of married woman is subsumed within that of her husband
Entailed loss of rights to contract, own property, testify in court, get credit in one's own name, etc.
We no longer have this – wives can sign their own contracts, etc.
CAPACITY TO AGREE
Edmunds v. Edwards
From a practical standpoint, some defenses to contracts apply to marriages as well
Regarding mental capacity to enter into a marriage contract
His guardian brought this action to annul the marriage 2 years after the date of the marriage ceremony
Several experts testify as to what Harold did or didn't know when he entered into the contract
We know that he was aware that marriage was a lifelong commitment
This issue could touch not allowing the disabled to get married
Rationale for this restriction on marriage requiring a certain level of competence:
To make sure that people understand that marriage is a serious commitment
Concern about disabled people reproducing – having disabled children or those for whom they couldn't care
Held: Harold was found competent
Being mildly mentally retarded did not automatically preclude a person from marriage
It is the general rule that the existence of a valid marriage is a question of fact
In law, marriage is considered a civil contract by which the consent of the parties capable of contracting is essential
Marriages are void when either party at the time of marriage is insane or mentally incompetent to enter into the marriage relation
Faust-Graham
Old man had alzheimers and dimentia
She is young
They married suddenly and without help from the family
