WEEK 1 – Introduction to Family Law (1-19)
GENERALLY
WHAT IS A FAMILY?
Narrowly defined, “family” can mean a group related by blood or by marriage, such as a traditional family involving a husband and wife or a parent and child.
Broadly defined, a “family” may include a nontraditional family, meaning one of a group living in the same household.
o Traditional Family
· Marriage, between man and a woman, giving legitimacy to their conjugal relationship.
· Traditional assumptions regarding marriage and family:
§ Marriage was a primary support institution and a decisive determinant of the social, economic, and legal status of the spouses and the children;
§ Marriage in principal was to last until the death of a spouse, and would be terminated during the lives of the spouses only for serious cause;
§ The community aspect of marriage and family was to be emphasized over the individualistic personalities of each member;
§ Within the family, the standard pattern of authority and role allocation was that the husband-father was predominant in decision-making and was to provide for the material needs of the family, while the wife-mother cared for the household and the children; and
§ Procreation and child rearing were assumed to be major purposes of marriage.
· “Two-paycheck” families now the norm.
§ Gender-neutral laws
§ New expectations–with a resulting decrease in number of children per family and resulting increase in divorce.
· Questioned by feminists as perpetuated to maintain male dominance.
· Trend now towards nontraditional family arrangements, which has caused strong endorsements of a rededicated commitment to traditional marriage structure.
§ Some states have explored various ways to “reinstitutionalize” traditional marriage.
· Ex. Louisiana and Arizona have enacted “covenant marriage” statutes where the parties agree to attend premarital counseling from a clergy member or marital counselor, and further agree to dissolve the marriage based on traditional fault grounds, rather than through no-fault divorce.
· Ex. Encouraging or mandating couples to participate in premarital education and counseling prior to marriage.
o Nontraditional
· As result of societal change in lifestyles found in rapid growth of nontraditional families, many question the continuing viability of traditional family structure.
· State’s interest in preserving the traditional structure may not be important enough to offset new societal and individual needs which require more flexibility and choice in family forms.
WEEK 2 – MARRIAGE AND MARRIAGE ALTERNATIVES (23-67)
Marriage and divorce are fundamental rights subject to constitutional protection, a state cannot arbitrarily prohibit or interfere with the exercise of these marital rights without a compelling reason for doing so.
MARRIAGE:
o Controlled and regulated by individual states.
o A civil contract, by which a man and a woman mutually agree to live as husband and wife during their joint lives (unless it is terminated by law). They agree to discharge towards each other those duties which husbands and wives normally assume and those duties which are required by state law. Marriage is regarded as a status based upon public necessity controlled by law for the benefit of society at large.
· The United States Constitution has been interpreted to limit the state’s prerogative in restricting entry into the marital relationship.
· The US Supreme Court has held that there is a fundamental right to marry guaranteed by the Fourteenth Amendment (Loving v. Virginia, 1967).
· The Court has also held that a state law which significantly interferes with the right to marry must be subjected to rigorous scrutiny to satisfy the equal protection clause of the Fourteenth Amendment (Zabloki v. Redhail, 1978). However, reasonable state regulations which do not significantly interfere with the right to marry may legitimately be imposed by a state. Therefore, marriage formalities and state limitations on eligibility to marry should be analyzed in the light of these constitutional principles.
· Whenever a state requirements restrict one’s ability to marry, consider:
1. Whether the particular requirement operates so as to impinge upon the fundamental right to marry (due process); and
2. Whether it creates a classification subject to rigorous scrutiny (equal protection).
o FORMAL STATUTORY MARRIAGE
· Each state generally requires:
(1) parties obtain a license prior to the marriage; and
(2) parties be married by an authorized religious, judicial or civil officer according to state statute.
· If married w/ no acknowledged minister or celebrant, then “Quaker statutes” in many states will recognize such a marriage if performed according to the of that particular religious denomination.
(3) Blood tests for sexually transmitted diseases is also required by many states
· If parties do not fully comply with statutory requirements (ex. Marriage license is invalid), then marriage may be valid or invalid:
§Majority view:
In order to promote marriage and to validate the marital expectations of the parties, provide that the state marital statutes are only directory statutes, requiring only substantial compliance to constitute a valid marriage.
§Minority:
Hold marital statutes to be mandatory, requiring strict compliance to constitute a valid marriage.
However, these mandatory statute jurisdictions often include a curative or “savings” statute, providing that if there is a defect in the license, or a defect in the marrying official, but the parties consummate their marriage with a good faith belief that they have been lawfully joined in marriage, then the marriage is valid, despite their statutory noncompliance.
o INFORMAL MARRIAGES
Some courts have traditionally viewed informal marriages with suspicion and mistrust, other courts have recognized the validity of such marriages under the public policy rationale of promoting marriage in general, and of validating the marital expectations of the parties in particular, especially with respect to the parties’ marital property and support rights and obligations.
· Common Law Marriage
§An informal marriage that does not meet the requirements of a formal statutory marriage.
§Dual nature: alternative to marriage, but on the other hand, people very rarely deliberately enter into a common law marriage
§Are valid as formal marriages in the 14 jurisdictions where common law marriages are legally recognized.
§Even where not recognized, courts will recognize common law marriages if contracted in one of the jurisdictions that do recognize such marriages.
§Elements:
Intent and agreement by both parties;
Continuous cohabitation for the statutory period;
Holding out/public declaration by both parties that they are married.
Burden of proof is on person asserting the claim;
When one party is dead, the burden of proof is by clear and convincing evidence.
§NO SUCH THING AS A COMMON LA
ion:
“Traditional” rule, the domiciliary state and the parties are not bound by any estoppel defense in collaterally attacking a void migratory divorce and subsequent remarriage.
· Rationale: That estoppel, even for a limited purpose, ultimately results in the de facto recognition of a void divorce, usually granted by a court lacking any jurisdiction whatever, and therefore violates the domiciliary state’s strong public policy.
“Sociological” rule, the court will attempt to validate the parties’ “real” expectations of divorce and remarriage, rather than relying on a purely theoretical and perhaps “unreal” legal basis.
· Majority view, but has been criticized for resulting in “uncertainty and ambiguity as to a person’s marital status and his capacity to marry and prevent a valid dissolution of a prior dead marriage.
“Status v. Property right” rule. If the action deals with the marital status, like actions to declare nullity of a void marriage, separation or divorce; then estoppel is not appropriate since the parties are trying to clarify their legal status–who is married to whom. But if the action deals with a property right, such as taking against a deceased spouse’s will, or enforcing an alleged right to support, then estoppel may apply.
o LAST IN TIME MARRIAGE PRESUMPTION
· Ex. A husband or wife has unexpectedly died, and the surviving spouse may be in the process of a wrongful death action, a suit for social security benefits, or a probate action. However, a former wife or husband comes forward, claiming that they were never divorced from the deceased spouse, and that they, rather than the subsequent spouse, should recover in any legal proceedings as the legal wife or husband. Which should prevail?
§ Last-in-time marriage presumption is based upon one of the strongest presumptions of law that an existing marriage, once shown, is valid.
§ A subsequent marriage therefore raises the strong presumption that any former marriage was terminated by divorce, and the former spouse has the burden of proving that there was no divorce.
· Former spouse will only be able to rebut by searching all the divorce records where the deceased resided, or might have resided, in order to prove that no divorce decree was ever granted.
§ So, if the former spouse fails to rebut this presumption, then the subsequent spouse will prevail.
§ Applies to valid common law marriages too!
PROOF OF MARRIAGE
Normally a valid marriage license or a certified copy of the marriage record will constitute prima facie evidence of a marriage. There is also a strong presumption of marriage based on marital cohabitation and repute, which can only be overcome by cogent and satisfactory proof that there was no valid marriage.
