Family Law Outline
Hobbs Fall 2007
I. Historical Glimpse of Family Law
II. Marriage and it’s Barriers
A. Maynard: Marriage is an institution of society, founded upon consent and contract of the parties.
B. Legal Recognition: usually (non-CL) parties must comply w/ a state’s general requirements regarding a marriage application.
C. Capacity: To marry one must have the state of mind and the capacity to marry.
1. State of Mind: consist of voluntarily entering into the relationship with the intent to marry at that time.
2. Capacity generally requires parties:
a) be of opposite gender
b) not be married to someone else
c) not be related as defined by local statute
d) be of age which local law permits
e) be capable of understanding the nature of the act
3. If a party lacked capacity b/c of mental incapacity, drugs, alcohol, fraud, duress, etc., then usually the marriage will be held invalid.
4. Guardian’s Consent: If an applicant is underage then a guardian can grant permission subject to local statutes.
a) Age restriction statutes have withstood constitutional challenge by states citing a rational basis. (In other cases courts might use HSR b/c fundamental right).
D. Common Law Marriage: very few jurisdictions still recognize them but all states must grant full faith and credit.
1. Five Elements
a) An express agreement made in the present tense
b) By parties that are competent to contract
c) Cohabitation as husband and wife
d) Holding oneself out to the community as being married
e) Establishing a reputation for being married
2. Some factors to consider:
a) Same last name?
b) Joint banking accounts?
c) Joint property?
d) Did they introduce themselves as married?
3. Putative marriages: typically a party who participated in a marriage ceremony and believes in good faith that they were married is allowed marriage protection despite a “technicality”. However, protection is not given once or if the technicality is discovered. (only applies in ignorance).
E. Racial Barriers: Struck down in Loving v. Virginia, also established marriage as a fundamental right.
F. Zablocki v. Redhail: Established varying degrees of scrutiny when dealing w/ marriage.
1. HSR: Direct, substanti
C. A cohabitant must allege a legal theory as a basis for recovery.
1. Express written K: if valid generally upheld
2. Express oral agreements: must provide a substantial amount of evidence to support a reasonable inference of its existence. Even so may be invalid anyway if S of F applies.
3. Equitable K’s: (quasi K’s): based on unjust enrichment principles
1. No Alimony, wrongful death claims, or insurance recoveries.
A. 2 Questions to ask:
1. Is there subject matter jurisdiction?
2. Is there personal jurisdiction?
B. Federal Courts cannot hear domestic matters.
1. This is a narrow exception. (divorce, alimony, child custody).
C. Subject Matter Jurisdiction:
1. State legislatures have power to establish durational requirements for divorce.
a) It doesn’t totally deprive access to courts it simply delays access to them.