Family Law
Nichols
Fall 2011
1. Review of Due Process and Equal Protection
a. Right to marry is a fundamental right and therefore, state restrictions on the right to marry are subject to strict scrutiny.
i. Strict Scrutiny: restrictions must be necessary and to a compelling state interest and must be narrowly tailored.
1. Used in EP discriminatory classifications such as race, alienage, or national origin.
ii. Intermediate Scrutiny: restrictions must be substantially related to an important governmental objective.
1. Used in EP discriminatory classifications such as sex (gender) or illegitimacy
iii. Rational Scrutiny: restrictions must be reasonably related to a legitimate state objective.
2. The Birth of Privacy
a. Meaning of Privacy
i. Griswold v. Connecticut
1. Right of marital privacy is found within the penumbras in the 3rd, 4th, and 5th amendments.
2. Finds that there is a right of INDIVIDUAL privacy
ii. Eisenstadt v. Baird
1. EPC Claim
a. Doesn’t pass Rational Basis Review
2. Extends Griswold to the rights of the individual, married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
b. Roots of Privacy
i. Meyer v. Nebraska
1. Establishes the foothold for the right to privacy
2. Individual has certain ‘fundamental rights’ that must be protected
3. HOLDING: It is the natural duty of the parent to give his children education suitable to their station in life. – Parents have a fundamental right to raise their children in the manner they choose.
ii. Pierce v. Society of Sisters
1. Same as in Meyer: You weigh the state’s interest against the natural right of the parents. This idea of parental autonomy through these cases were the court extending substantive due process found in the constitutional protection of personal liberty to limit the authority of government to interfere in certain family situations.
c. The Liberation of Privacy
i. Lawrence v. Texas
1. State Interest:
a. State goal of moral disapproval is not a legitimate state objective
b. O’Connor – Moral disapproval of just homosexual couples harms the EPC of the 14th. To justify by itself a statute that bans homosexual sodomy but not heterosexual sodomy is not a legitimate state objective.
2. Conclusion/Holding
a. Substantive DPC claim
i. Right to choose to enter into personal relationships – fundamental right of privacy expanded to the choice of entering into personal relationships
ii. Our obligation is to define the liberty of all and not to mandate our own moral code. Their right to liberty under the DPC gives them full right to engage in their conduct without intervention of the government.
b. EPC claim
i. Heterosexuals can do it, why can’t we? State is not allowed to discriminate and single out just one class of people.
ii. Individual decisions by married persons concerning the intimacies of their physical relationship are a form of liberty protected by the 14th amendment.
c. Both consenting adults
3. Policy: Liberty and equality.
3. Marriage as a Contract or Status? Public v. Private Dimensions
a. The Marriage Contract
i. Is a marriage a K (private agreement between two parties) or a status (a public institution regulated by the state)? Or does marriage retain both features?
ii. Movement is toward status from K
iii. Minnesota:
1. MN Stat 517.01 Marriage a Civil K: Marriage is a civil K between a man and a woman where consent of the parties is essential.
2. MN Stat 517.02 Persons Capable of Contracting: Must be 18 and competent or 16 with parent consent.
iv. Maynard v. Hill
1. Marriage is something more than a mere K. Marriage is a relation created between the parties they cannot change. Other Ks may be modified, restricted, or enlarged or released if consented by the parties, BUT this is not so with marriage.
4. Premarital Controversies
a. “Breach of Promise to Marry” – Based on Tort Law: A man’s promise of engagement considered a legally binding K & if man were to subsequently change his mind, he would be in “breach” of the promise
i. MN does not have this and most states do not, only a few still do and often with limitations
1. Examples if Limitations:
a. Require that promises or Ks of marriage could only be established using either signed written evidence of the promise or K or the testimony of at least parties.
b. Also, punitive damages for those 60 years old are prohibited
2. Most states don’t allow this anymore, but some states do. In states that do permit, A can recover damages from B if B terminates the engagement.
3. Rivkin v. Postal
a. Courts hold that a quitclaim deed conveying property to them as joint tenants was not sufficient evidence to support promise to marry.
4. Defenses
a. P’s fraudulent misrepresentation
b. Nondisclosure of prior sexual conduct with third party
c. Impaired physical or mental health
d. The fact that either party was married at the time of engagement
e. P’s lack of love for D
f. Mutually of the decision to terminate the engagement
b. Gifts in Contemplation of Marriage
i. FAULT-BASED APPROACH: if an engagement is broken, whether a party must return the gift (engagement ring) back to the donor depends on who was at fault for terminating the engagement.
1. If a ring is given in contemplation for marriage, the party who breaks the engagement without justification must either return the ring or, if let the other person keep it (if they’re the donor).
2. Legal Theories for fault-based approach:
a. Conditional Gift: The gift is condition on the marriage. If the condition is not met as a result of B’s fault, then A can get the gift back.
b. Fraud: If B had no intention of marrying A then fraud.
c. Unjust Enrichment: B has received the gift under circumstances that would make it inequitable for B to retain the benefit without payment. B must disgorge the benefit by making restitution to A.
ii. NO-FAULT BASED APPROACH: Minority rule; gift is recoverable without regard to fault (it never really stops being the donor’s property).
1. Fowler v. Perry:
a. P and D live together and have child. P gives D an engagement ring, and then she moves out of the state. He intends to move after he graduates, but D calls of the engagement. D never returns the ring and when it’s stolen, she collects insurance money on it that she keeps.
b. Court holds that P is entitled to recover the ring or its value because the ring was a conditional gift, and adopts the no fault approach saying that the property never really stopped being his.
iii. MN: Donor always gets the ring
1. Modern Analysis: Primary purpose behind engagement period is to allow the couple to test the permanency of their feeli
nto voluntarily with full disclosure, courts will enforce it.
2. Factors considered in evaluating reasonableness:
a. The parties’ respective wealth
b. Respective ages
c. Respective intelligence, literacy, business acumen
d. Prior family ties
3. Time
a. UPAA requires unconscionability at the time of execution. So must look at whether it was unconscionable when you entered into it.
b. ALI requires substantial injustice (no unconscionability) at the time of enforcement. So must look at whether it’s fair at the time of divorce.
4. Simeone v. Simeone
a. 23-year old unemployed nurse marries 39-year old neurosurgeon. Prenup limits her right to spousal support to $200/week, subject to maximum of $25,000. At divorce, she says that the payments are not reasonable.
b. Court holds that spouses are not of unequal status anymore and that they were both knowledgeable to understand the contract.
iii. Voluntary
1. A party’s insistence on a premarital agreement as a condition of the marriage is not duress.
2. Timing:
a. Some courts require a certain amount of time, but most courts say that a few days before the wedding still doesn’t constitute duress.
b. ALI requires 30 days.
iv. Representation
1. Some states require that a party must have the opportunity to consult with counsel before the arrangement, but not that they actually do so.
6. Constitutional Limits on State Regulation on Entry into Marriage
a. Right to Privacy (SDP-14th) – Races (EP) Marriage evasion statutes (going to states to get married)
i. Substantial and directly interferes with marriage à strict scrutiny reviews vs. rational basis review.
b. Restrictions on Race
i. Loving v. Virginia:
1. Issue:
a. Freedom to marry a person of another race resides with the individual and cannot be infringed upon by the state under the 14th amendment DPC.
2. State EPC Argument:
a. Miscegenantion punishes everyone equally, therefore, it doesn’t discriminate
3. SCOTUS Holding:
a. This law violates both DPC and EPC. VA fails on compelling justification grounds (no compelling state justification for this statute).
c. Restrictions on Poverty/Economic class
i. Zablocki v. Redhail:
1. State’s interest: Marriage regulation and state has an interest in perpetuating itself and CAN regulate age benefitis: registration of marriage, witnesses; waiting periods
a. Wisconsin statute provides that noncustodial parents with court-ordered support obligations may not marry without a court order, which requires them to be current in their child support obligations (must have paid child support fully in order to get married). Redhail argues that this violates his right to marry and challenges on EPC and DP grounds.
