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Family Law
University of Alabama School of Law
McGuire, Bill

Family Law I Outline – Fall 2013 – McGuire
 
Citing cases will count extra on exam
 
·         Marriage as typically been defined as a contractual relationship between a man and a woman.
·         Louisiana has different types of marriages: covenant marriage where you must go through courses to get married and certain steps to get divorced
·         But in every state marriage is a contract: it is ever changing
·         Implications of being in contractual relationship:
o   death benefits (typically no rights if you are just living with someone and your partner dies),
o   social security (must be a ten year marriage and you will have right to draw on their social security if they made more),
o   criminal law (can’t be made to testify against your spouse),
o   pension plans (can typically designate through employer that part of your pension can go to your spouse – this is typically not applicable to partner but this is changing and companies are making it more flexible),
o   as of now you have the right to put your spouse and family on your health insurance (this is very expensive)
·         since this is a contractual relationship, there must be a way to get out of it: divorce – the way to dissolve the relationship
o   this is the problem with states that allow same sex marriage – they made no way to dissolve it – so what do you do when the relationship ends? (if land has been purchased, or a child has been adopted…)
·         requisites for a valid marriage (in most states) must meet all four or you cannot have a valid marriage/contract
a.       must be of a sufficient age
                                                               i.      (use to be 14 in Alabama but it is now 16) section 30-1-4
b.      parties must be of sound mind
                                                               i.      (typically, unless there has been violence, a judge will not remove either parent from the house – don’t want them to be separated from children)
c.       must have ability to enter into marriage contract
                                                               i.      (cannot be married to someone else – once a judge signs a divorce order, they cannot remarry anyone else except for one another for 60 days – this is in Alabama)
                                                             ii.      there is also a 30 day cooling off period from the time the divorce is filed until it is final 
                                                           iii.      bigamy – this is a criminal case – can only be married to one person
d.      cannot be too closely related by blood
·         Alabama Protection Act (*find full name*)
o   Section 30-1-19
o   Marriage is a unique relationship between a man and a woman
o   No marriage license will be issued to peoples of the same sex
o   Shall not recognize as valid marriage of parties of the same sex that has been joined in other jurisdictions regardless of whether a license has been granted or not
·         Two types of marriages that are recognized in Alabama (and in about 13 or 14 other states)
o   Ceremonial marriage:
§   typical marriage where you have pastor, judge, captain, etc.
§  Deemed to be complete when the official signs off on the license
§  Don’t have to have sex/cohabitation is not required
o   Common Law marriage:
§  Still have to have the four requirements from above
§  Most important part of this is that they have to hold themselves out and present themselves to the public as husband and wife and you have to be intimate (must have sex)
§  ***Keystone to this is that it is the intent of the parties to hold themselves out as husband and wife that determines whether they are married
§  generally a judge must decide whether a common law marriage exists
§  there is no common law divorce, must go through same steps just as if you were married through ceremonial marriage
§  date of marriage is hard to determine – must send out subpoenas to everyone you can: utilities, cable, landlords, bank accounts etc. to find out if they have signed anything together as husband and wife
·         Buford v. Buford 874 S. 2nd 562
o   Wife filed for divorce to dissolve common law marriage, court held trial and entered it into order that a common law marriage did exist
o   Standard of proof in these cases is clear and convincing
o   Factors: Linda testified that in Nov 84 she began using the last name of her spouse, they lived in a residence together, he gave her his grandmother’s antique ring, he introduced her as his wife, joint debts and joint bank account on which her name was Linda Budord, also filed joint tax return
o   Separated after being together for about 6 ½ years

r to the 70’s you had to have someone do something wrong but in the early 70’s they came up with no fault grounds (simply can’t get along)
§  Incapacity on the day of marriage – impotent (the male can’t have sex)
§  Adultery
·         Technically still a crime in Alabama – you can be put in jail. There is a one year statute of limitations
§  Abandonment
·         Form bed and board for one year before divorce is filed
§  Imprisonment
·         Two years with sentence of seven years or longer
§  Crime against nature – bestiality
§  Addiction – must be after you are married
§  Incompatibility of temperament
§  Insanity
§  Irretrievable breakdown – same as incompatibility of temperament
§  Violence and cruelty – domestic violence
 
 
Wednesday, September 18, 2013
not going to do temporary relief
need to know about tool that is used for bandaid (temporary relief) that is called a PDL: requested early in litigation to put a band aid between filing for divorce and actual trial to set out who does what during pendency of litigation  – who takes care of children when, who pays what bills; also deals with issues like the mother not wanting her children around father’s girlfriend; may have to specify where parents may have to meet to drop off children – set all kinds of limitations on restrictions for visitation; want to set the date to figure out these things as soon as possible because may be a housewife and want to make sure mother has the money she needs to take care of what she needs to take care of which may be through a temporary alimony; typically only the husband and wife are allowed to testify in these – everything else will be flushed out in trial; will also deal with injunction if there has been violence (this will be in short answer and part of one of the longer questions)
annulment, legal separation and prenuptial agreements
alimony next  week