I. MARRIAGE
A. Introduction
1. Legal consequences of marriage
a. Emotional attachments (caretaker)
(1) Family leave provisions
(2) Immigration preferences
(3) Suits for loss of consortium
(4) Hospital visitation & intensive care
(5) Conjugal visits in prison
b. Parenting
(1) Right to adoption
(2) Visitation
(a) “Other mother” situations (same sex relationships)
(b) Ex-stepparents
c. Economic (regulating economic relationship between the parties or between the couple & the state)
(1) Inheritance (prevent disinheritance)
(2) Beneficiaries of life insurance
(3) Social security
(4) Workers’ compensation benefits
(5) Health insurance
(6) Tax benefits
(7) Pensions
(8) Alimony or division of marital property
d. Other reasons
(1) Religious
(a) Religious marriage ceremonies do not confer legal rights
(2) Parental pressure
(3) Societal recognition
(4) Emotional satisfaction
(5) Permanence/commitment
2. Interstate recognition of marriages
a. General rule – Conflict of law
(1) A marriage valid where it is formed is valid everywhere unless it is against deeply held public policy of the forum state
(a) E.g., first cousin is likely not deeply held; but same sex & polygamy generally are
3. Void vs. Voidable Marriages
a. Void
(1) Never valid; invalid from the start; void ab inito
(2) Usually the defect is very serious
(a) E.g., brother/sister; polygamy; same sex
(3) Cannot be made valid
(4) 3Ps may be able to question validity
(5) Can be collaterally attacked
(6) In theory don’t need an annulment action to end it, but should get one so you have legal documentation
b. Voidable
(1) Valid until declared invalid
(2) E.g., gin marriage; fraud; age
(3) Must have a court action (annulment) to end
(4) Only one of the parties can attack (no 3P)
(a) One exception
i. Parents for underage children
(5) Cannot be attacked after one of the parties dies
(6) Can be ratified
c. Have to look to state statute to determine what is void/voidable
(1) Exception
(a) Federal statutes
i. Doesn’t matter what the state law says (e.g., IRS, INS)
d. Annulment vs. Divorce
(1) Annulment
(a) Marriage was never valid in the first place
(2) Divorce
(a) Valid marriage & have legal basis to end marriage
B. Substantive Restrictions
1. Same sex
a. Issues
(1) How much should the state interfere w/ a person’s private life?
(2) How important is it to be married?
b. Domestic partnership
(1) Non-marital K or arrangement between 2 persons recognized by a business or govt entity & providing limited benefits
(a) Benefits may be fairly narrow (e.g., bereavement leave, hospital visitation, health benefits) or, if recognized by a govt entity, may be as much as giving all the rights that are given to a legally married spouse
(2) Not a marriage
(a) Doesn’t satisfy the people that think gender shouldn’t matter in marriage
(b) People against same sex marriages may also be against this
(3) 3 states have
(a) VT, HI, CA
i. HI
a. Applies to couples that are legally prohibited from marrying
ii. CA
a. Applies to same sex couples & heterosexual cohabiting couples over age 62 & eligible for social security
iii. VT
a. Applies only to same sex couples
c. Baker v. Vermont
(1) VT SC held that under VT constitution, the state must offer same sex couples the same benefits & protections afforded by VT law to married opposite sex couples
(a) Court sent it to the legislature to accomplish & retains jurisdiction
i. VT passed the Civil Union statute
a. Provides all benefits & protections of a legal marriage
d. Defense of Marriage Act
(1) Federal law
(2) Authorizes states to refuse to recognize same sex marriages formed in other states & bans federal benefits (social security, etc)
e. State constitutions
(1) Several states have amended their constitutions to say that marriage is between a man & a woman & therefor
in conflict w/ religious views
(2) Courts refuse to give 1st Amend protections to these people
(a) Whether the wives consent or not
(3) Ex:
(a) A & C (married – break up but don’t get a divorce/annulment)
(b) A & B (get “married”)
(c) C divorces A
(d) à In the great majority of states (~49) – A & B need to get married b/c their “marriage” is void
(e) à IL says once the impediment is removed, then the marriage between A & B becomes valid
b. Policy
(1) Exploitation of women
c. Bigamy vs. Polygamy
(1) Bigamy
(a) Marrying a person when you still have a living, un-divorced spouse
i. The other spouses may or may not know about it
(2) Polygamy
(a) Usually means a man married to more than 1 woman
i. Today usually means they all know about each other
4. Age
a. Every state has an age statute that applies to marriage
(1) Usually 2 types of prohibitions/limits
(a) Below a certain age à Absolute prohibition (e.g., 16)
(b) Between x & y à W/ parental permission (e.g., 16-18)
i. Judicial bypass
a. All states have for abortion
i. Forever implications
b. Many states have no bypass for marriage
i. Not eliminating right to marry – just delaying it
ii. Some case law requires that parental refusal not be unreasonable
(c) Some states permit pregnant minors to marry at younger ages
(2) Rational relation test
(a) State interest – protection of minors
i. Protect & promote the welfare of children who lack capacity to act in their own best interest
ii. Prevent unstable marriages
(b) Balanced against ch
