THEMES IN FAMILY LAW
What is a family?
i. Individuals who are related by:
1. Blood
2. Marriage
3. Adoption, OR
4. a group of individuals who choose to live with one another in a committed, supportive, and nurturing relationship
ii. exhibits stability, permanency and functional lifestyle equivalent to a traditional family unit
State Interests in Family
i. Family is a basic building block of a civil state
1. Promotes stability and accountability
a. Goes against state interests to promote a non-family unit, i.e. frat house/animal house b/c “real” family living together encourages stability, etc. whereas frat house does not
b. Hippie Communes and frat are not entitled to same privileges as families
c. **Key distinction b/t “families” & “non-family members” is the stability of their relationship**
2. Moore v. City of East Cleveland
a. Tradition of uncles, aunts, cousins, etc. equally deserving of constitutional recognition
b. Const. prevents E.C. from forcing/standardizing citizens to live in narrowly defined patterns
ii. Family members have incentives to constrain one another’s behavior to enhance the family’s equity
1. Free Rider Problem- as a free rider w/ no family reputation to worry about and nobody to check your behavior, you don’t care as much b/c there is no accountability
2. i.e. “good name” is good in the community
iii. MD 1-201 grants state court jurisdiction over regulating the family
Sources of Family Law
i. Religious – determined by the church
1. MD is a catholic state
a. a lot of states have gone to no fault divorces but MD seems to have PP of morality so probably wont ever go this way
ii. Social – defined by community
iii. Contractual – family formed as a willingness to enter into the arrangement
iv. Naturalist – natural law that predates laws of society
FAMILY FORMATION
Prenuptial Agreements
i. Must be in WRITING b/c of Statute of Frauds
1. EXCEPT: if either party has performed in reliance on the K and then doesn’t have to have been in writing to be enforceable
2. Marriage is consideration for the K
3. **cts often scrutinize prenups more than commercial Ks b/c commercial Ks usually have equal parties where often in prenups, parties are not in equal positions AND entered into w/ assumption that they will never be invoked**
ii. Three most important parts of prenup (MD):
1. standard for validity-w/in confidential relationship, was there overreaching (unfairness or inequity in getting the agreement or in the result of the agreement) in securing this K (w/ marriage as the consideration for the K)?
2. parties to a prenup are in a confidential relationship
a. Burden:b/c of this confidential relationship, the party seeking to enforce the K has the burden to show the standard of validity (unlike usual where party seeking to break the K has burden).
i. Party w/ burden must show:
1. full frank truthful disclosure of assets or that the other had knowledge of the assets (subject to waiver)
2. the allocation made to the party waiving their rights is not unfairly disproportionate
3. agreement entered into voluntarily and freely w/ full knowledge of its meaning and effect
b. Ex. unfairness in the procurement: ask W to sign 2 hrs b4 wedding or no marriage
3. both parties expected to make a full, frank, truthful disclosure of assets, subject to waiver
a. must be made prior to or at the time of the agreement
b. If you don’t have this, can prove not fairly disproportionate at time of agreement
i. if it was, look to overreaching again
iii. Button test-an agreement is inequitable if it fails to satisfy any of:
1. each spouse has made fair and reasonable disclosure to the other of his/her financial status
2. each has entered into agreement voluntarily and freely (1 and 2 as of the time of execution)
3. provisions of agreement dividing the property upon divorce are fair to each spouse (assessed at execution but also at divorce if circumstances have changed significantly)
iv. premarital agreement enforced UNLESS (Bonds):
1. pursuing party didn’t enter into K voluntarily, OR
a. to determine “voluntariness,” can look at:
i. Proximity of execution to the wedding
ii. Surprise
iii. Presence or absence of counsel
1. In MD, no counsel not sole reason to invalidate
iv. Inequality of bargaining power
v. Age and sophistication
vi. Full disclosure of assets
vii. Understanding of rights being waived
b. K was not unconscionable when entered into AND
c. he/she didn’t have actual or constructive knowledge of assets and obligations of other party and didn’t voluntarily waive knowledge of such.
v. Diasdado- Can’t get damages for sexual infidelity
vi. Why prenup?
1. to protect assets
2. to ensure kids from previous marriages are taken care of
3. w/ 2nd marriages and marriages at older ages, more prenups b/c have acquired more assets
vii. Why not?
1. could encourage hiding of assets
2. offensive
3. can create a financial incentive to divorce
a. can create financial incentive to divorce at certain times
i. ex. Trump and Marla Maples—at some point she gets a percentage of everything when before got a fixed amount so divorced just before the percentage took effect
4. can also create financial incentive to stay in a bad marriage
viii. What to include:
A. Protect family assets, Child support even for kids from prior marriage, Split what’s acquired during the marriage, Retirement, Investments, Personal property, Alimony, Heirlooms, Bank accounts, Tangible propertyàcollections, Vehicles
B. Marriage
a. Two requirements of Marriage:
a. Solemnization-marriage ceremony
1. MD 2-406: can be performed by a judge, official of religious body authorized by rule or custom, clerk of court, deputy clerk of court
a. w/in 6 mos. of the license
b. Licensure- w/in state ceremony performed
1. MD 2-401-can’t get married in MD w/o license
2. M
of the benefits of marriage
1. not just for partners but can also have a recip. Beneficiary relationship with your child
D. Establishing Paternity
a. Two ways to establish in MD (can use either!!!! Use whichever tools work best for your facts!):
a. Estates and Trusts Article
i. 1-206. Legitimacy of Child. Marital Presumption – it’s the husband’s kid if conceived during a marriage
1. A child conceived by artificial insemination w/ husband’s consent is legitimate child of the coupe of all purposes
2. Evans v. Wilson: H:a child born at any time after his parents have participated in a marriage ceremony with each other, even if the marriage is invalid, is presumed to be the legitimate child of both parents
a. criteria for determining the child’s best interest in Paternity Cases:
i. stability of the child’s current home environment
ii. whether there is an ongoing family unit
iii. child’s physical, mental, and emotional needs
iv. the child’s past relationship with the putative father
1. Stanley. Constitutional right to parent not based on biology but on the relationship with the child.
a. BUT, Coloin: Dad loses his case b/c he doesn’t act enough like a concerned fatherwhich ct says its OK to terminate parental rights w/o a finding of unfitness b/c of this (this is a very severe punishment)
b. why choose E&T article over FLA: an action to establish paternity is more appropriately brought under the estates and trusts article when the child at issue has been born during a marriage b/c it presents the more satisfactory and less traumatic means of establishing paternity
c. In best interests of child for stability purposes, etc., law does not allow blood test of possible third party for paternity b/c of marital presumption
i. UNLESS showing of good cause
ii. 1-208. Children of Unmarried Parents.
1. Child born to unmarried couple is considered the child of MOM only
2. Considered child of Father only if the father:
a. (1) Has been judicially determined to be father
b. (2) Has acknowledged himself, in writing, to be the father
c. (3) Openly and Notoriously recognizes the kid to be his child; OR
d. (4) Has subsequently married Mom and acknowledged to be father
e. NOTE:
i. Use this to block a mom saying she doesn’t want him to be dad so doesn’t want him to have a blood test, etc. too bad if he has done any of these things that prove he is the dad.
