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Family Law
University of Cincinnati School of Law
Williams, Verna L.

Family Law Outline, Williams, Spring 2014

I. Getting Married

A. Preparing to Marry: Premarital Controversies

i. Breach of Promise to Marry:

Maynard v Hill, SCOTUS, 1887- affirmed the state’s right to regulate marriage and divorce

· Marriage is more than a civil contract

· When the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change

o Contrast with other contracts which can be modified, restricted, or enlarged, or entirely released upon the consent of the parties

· SCOTUS cites state supreme court definition of marriage:

o A social relation like that of parent and child, the obligations of which arise not from the consent of concurrent minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress

Breach of Promise to Marry

Rivkin v Postal, TN Appellate Ct, 2001

PROCEDURE: This case is based on a counterclaim for breach of promise to marry by Postal in response to Rivkin’s suit seeking partition of the parties’ jointly-owned property and the return of his personal property in her possession

FACTS: Rivkin, a very successful music producer, met Postal, who sold swimsuits wholesale, at a music convention in 1994

o They began living together and in 1995, after Postal refused an abortion at Rivkin’s request, she gave birth to their child

o Rivkin kept Postal in a $420,000 home, hired a nanny, and kept her in a fancy lifestyle

o Their issues stemmed from Postal’s insistence that they marry

· Her family was judging her

o Rivkin refused, so Postal eventually bought a ring for herself and began telling her family they would be married after his divorce

o Rivkin divorced in 1997 and 3 months later dumped Postal

Issue: Was the quitclaim deed appropriate evidence under TN’s breach of promise to marry cause of action?

Holding: No

Rule: In TN, to prove a promise to marry, the plaintiff must show written evidence of such contract, signed by the party against whom the action is brought or with the testimony of at least 2 disinterested witnesses.

Rationale: quitclaim deeds are used by business partners, conveyances between family members, cleaning up title for title insurance, or gifts

· A quitclaim deed alone does not prove an intent to marry

· Under TN law many writings will suffice including:

o Application for marriage license

o Attested petition to waive the age or waiting requirements for marriage

o Correspondence between parties

· Postal also failed to produce 2 disinterested witnesses because she only called her parents who at the time of the case were her creditors

Rivkin prevailed, no dissent

B. Cohabitation: Unmarried Couples

Lawrence v. Texas, 2003; Kennedy

Moral disapproval by itself is not legitimate state interest. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The purpose of Court is to determine liberty, not impose their moral code on others.

FACTS: TX anti-sodomy law applies only to homosexuals. 2 men are arrested for doing it. What is at stake is liberty of the self, of one’s conduct, intimacy, and in the private setting.

HOLDING: Laws that criminalize private, consensual sex b/w adults of the same sex violates the due process clause. Overrules Bower


· Done under the Due Process clause. This is done rather than equal protection because if it is just an =Pro argument, perhaps if you’re willing to criminalize conduct for homos and heteros, then it would satisfy the equal protection grounds.

· A desire to harm a politically unpopular group is not a legitimate state interest

· Statute makes gays unequal in the eyes of the law by criminalizing their particular conduct

· Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual do.

· Isn’t really about “conduct”, its really about a reflection of beliefs, dignity, freedom of expression, enforcement of certain views

C. Premarital Contracts

· Traditional View: any agreement that determined financial arrangements in case of dissolution were void as contrary to public policy—thought they facilitated divorce by providing inducements to end marriage. However, agreements that determined financial consequences upon death were fine.

· 1887: U.S. Sct said that state legislatures could dissolve marriages. Said, while marriage might look like a contract on its face, it is something more. Its also a status, b/c state defines rights, duties, and obligations that attend to marriage. State has rules on how marriage ends and what happens when parties get married/divorced. Court says its like a K and like status (something regulated by the state)

· UPAA (uniform premarital agreement act) – done to create a uniform way for courts to evaluate prenups. ½ the states have adopted it. Major elements include: 1) prenups must be in writing, 2) signed by both parties, 3) no consideration necessary, 4) appropriate subject matter include: alimony, property, support, inheritance rights.

1. Traditional view: pre-marital Ks re financial obligations in the event of dissolution were void against public policy, b/c it facilitates divorce by providing inducements to end the marriage and denigrating the status of marriage. Pre-marital ks re financial consequences after death were permitted.

2. Pre-marital agreements:

a. Modern approach: courts, increasingly, are recognizing pre-marital agreements. This change has resulted from the rising incidence of divorce and remarriage, the decreasing influence of morality, changing gender roles, and an enhanced respect for decisional autonomy.

b. Pre-marital ks: 2 approaches for validity

1- substantive fairness is not relevant: in keeping w/ the trend re pre-marital k, there is a trend toward allowing the k to stand, even if one party has given up all his or her rights in the property of the other.

2- substantive / procedural fairness is relevant: (in re marriage of greenwald / button approach)

a) a

ere in punishments by the other parents – Enforceable? No

b. Children born of the marriage shall attend public school – Enforceable? No

c. Things on page 139 – generally not enforceable due to public policy.

III. Restrictions on Entry into Marriage

· Right to marry= fundamental right. Strict scrutiny.

· All states have restrictions on who may marry. But there are constitutional limits.

· Rule of Lex Loci: a marriage valid where performed is valid everywhere. But jxn need not recognize it if contrary to public policy. Sup Ct holds that such a racially motivated policy is unconst. in Loving v. VA

a. substantive restrictions

i. capacity to marry: all states have substantive restrictions on who may marry. These refer to regulations as to capacity to marry and state of mind.

(a) Capacity requires that the parties:

(1) be of opposite sex

(2) be married to only one spouse at a time.

(3) not be related, and,

(4) be above the statutorily defined age

(b) State of mind restrictions require that the parties marry:

(1) voluntarily and,

(2) w/o fraud or duress

A. Race

Loving v. Virginia Get This Too!!!

Lovings go to DC to marry b/c VA has anti-miscegenation laws. (one of 16 states) They return to VA & are arrested. They have to leave VA & not return together. They appeal saying the statute violates EP cl. and DP cl. Lex loci. Virginia wouldn’t abide by this b/c there was a public policy exception that these types of marriages go against their public policy.

Lovings Raise Two Arguments:

1. Equal Protection – white supremacy isn’t legitimate

– can be seen as non-discriminatory b/c equally applied to both races. Court

doesn’t buy this argument b/c the law was designed to bolster white


2. Due process- violation of fundamental right

– Lex Loci (a marriage valid in one place should be valid everywhere; an exception for lex loci is when states have exceptions stating what types of marriage are allowable), Strict Scrutiny: Warren struck down VA anti-miscegenation statute. Strict scrutiny: Law “directly subverts” 14th Amendment equality.

-Violates EP: as the Lovings say that not only can they not choose their partner b/c of their race but white purity isn’t compelling state interest. Violates Due Process: deprives of fundamental “vital personal right” to marry as you choose. Marriage is one of the “basic civil rights of man.”