Introduction
· 1) Definition
o Family law explores the legal relations of the family and its member
· 2) Societal Influences on Family Law
o A. Women’s movement
§ Led to a change in public policy toward women
o B. Rising incidence of divorce
§ No-fault divorce transformed rules of property distribution, spousal and child support, and custody
o C. Dissatisfaction with the Family and Growth of Alternative Family Forms
o D. Respect of family autonomy
o E. Child’s rights movement
o F. New Reproductive Technology
o G. Decreasing influence of morality
· 3) Trends
o 3 contemporary trends
§ 1. Federalization – increasing congressional role
§ 2. Constitutionalization – application of constitutional claw
§ 3. A movement toward the uniformity of state law
Preparing to Marry
· 1) Premarital Controversies
o A. Breach of Promise to Marry
§ The common law recognized a contract action for breach of the promise to marry, and the damages recoverable by the injured party closely resemble those found in tort action.
§ A few states permit an action for breach of promise to marry which enables A to recover damages from B, if B terminates the engagement
§ Even in states that recognize the action, courts circumscribe recovery
§ Possible Defenses include: fraudulent representation, nondisclosure of previous unchaste conduct, impaired physical or mental health, or the marital status of either party
o B. Gifts in Contemplation of Marriage
Most jurisdictions recognize the rule that an engagement gift made in contemplation of marriage is conditional upon a subsequent ceremonial marriage.
§ The majority rule specifies that, if a ring is given in contemplation of marriage, the party who breaks the engagement without justification is not entitled to return or retention of the ring
§ The modern trend is to minimize the importance of fault in breaking the engagement
· 2) Premarital Agreements
o A. What are they?
§ Agreements between prospective spouses made in contemplation of marriage
§ Typically require a party to limit or relinquish certain rights the party would have acquired by reason of marriage
o B. 1st Limitation: Cannot determine rights of child support or custody
§ Parties may not enter enforceable agreements about child support or child custody
o C. 2nd Limitation
§ Cannot control lifestyle, cannot divide household chores, cannot control sexual aspects
o D. Formalities
§ Writing
· The SOF requires that the agreements be in writing and signed by the party to be charged
Consideration
UPAA does not require consideration
However, case law suggests consideration is necessary
In case of pre-nup, the consideration is the marriage
In case of post-nup, the consideration is the mutual promises that include the various rights of the parties or disclosing of property owned by them
Consideration and Presumption of Fraud
If consideration is inadequate, then fraud is presumed
If there is a presumption of fraud, the presumption must be rebutted, and thus the burden shifts to the proponent of the agreement
The proponent needs to show that the challenger:
Understood the nature and extent of property owned,
Prove challenger has opportunity to consult counsel (counsel who advises on the pre-nup cannot represent client in divorce)
Prove that the challenger was not coerced or placed under duress
o E. Scope
Giving up any right to take property from the deceased spouse’s estate
Giving up the right to dispute the will of the deceased spouse
Giving up the right to claim ownership of specific property tha
ght to marry must be subjected to rigorous scrutiny to satisfy the equal protection clause of the 14th amendment (Zablocki v. Rehail)
3. Some reasonable regulations will be upheld
However, reasonable state regulations which do not significantly interfere with the right to marry may be legitimately imposed by the state
§ 4. Race and Poverty
· Racial restrictions on the right to marry are unconstitutional
· The Supreme Court invalidated a restriction on the right to marry based on poverty
§ 5. Prison – A special context
· States have on occasion barred marriage by anyone who seeks to form such a relationship while incarcerated for a crime.
· In Turner v. Safely,
o Court held that a state regulation barring all marriages of inmates was not reasonably related to state interests
o Court held that the right to parry applies even in those special contexts
o Upheld the ruling that a prohibition on marriage for life inmates is constitutional
· 4 part test for considering the validity of prison regulations (Given by Justice O’Conner)
o 1. Is there a valid rational connection between the regulation and a the legitimate state interest?
o 2. Are there alternate means to exercise these rights?
o 3. Will the accommodation of this right have a ripple effect on the inmates and/or staff?
o 4. Are there are alternatives to this regulation that would have dominimus cost to the interest of the state?
