Family Law Outline
1L Spring Semester – 2011
I. Marriage
A) General Info:
1) Marriage is legal status of two consenting parties who have agreed to join lives.
2) Three theories of a marriage:
(a) Ceremonial Marriage
(b) Common Law Marriage
(c) Putative Marriage
B) Characteristics of Marriage
1) Consensual agreement between two people to join lives.
2) Agreement is executed
3) Relationship – Legal/Social status – between two people
C) Three Legal Requirements of a Valid Marriage
1) Proper Consent
2) Proper Capacity
3) Formalities of celebration
D) Consent
1) Requirements of Consent
(a) Mental Capacity of both parties
(i) Capacity to marry is generally challenged in a law suit.
(b) No Fraud
(c) No Duress (Voluntary)
(i) Subjective standard.
2) Consent must be given specifically to marriage.
3) Impediments to Consent
(a) Limited Purpose marriage (Sham Marriage)
(i) Invalid
(ii) Consent was given with a disingenuous motivation
(iii) Preponderance of the evidence must show that parties did not intend to assume all rights and obligations of marriage.
(iv) Some states hold a sham marriage to be valid
· No such thing as a “normal” marriage
· Valid consent is the only requirement, not genuine motivation.
E) Capacity
1) Partners of opposite sex
2) Both parties are of sound mind/
F) Fraud
1) Voidable
2) Court’s requirement:
(a) Misrepresentation concerning a material element of the marriage
(i) Material Element:
· Fertility
· Willingness to have sex
(ii) Non-material element
· Wealth
· Temper
· Character
(b) Some courts will apply a subjective test
3) Test of Fraud:
(a) The fraud must concern something that makes it impossible to perform the duties & obligations of marriage or makes continuing the marriage dangerous to the well-being of the moving party.
(b) But-for Test
(i) If it weren’t for the falsehood conveyed, I wouldn’t have married this person.
4) Defenses to annulment claims
(a) Continued cohabitation after knowledge of fraud (Ratification)
(i) Ex: If an underage spouse continues to live with her non-minor spouse, after she reaches the age of majority, it is assumed that the consent is implied by the continued cohabitation.
(b) Lapse of time without knowledge of the fraud.
G) Limited Purpose Marriage
1) Disingenuous motivations to marry
(a) Citizenship
(b) Financial Gain
(c) Succession Rights
2) Challenges to Scope
(a) Consent to a limited purpose marriage
(i) Typically challenged by the government.
(ii) The subjective intent of the parties is challenged.
H) Formalities of Marriage
1) Statutory Requirements
(a) Licensure – Permission to marry from the state
(i) Licensing
(ii) Waiting period
(b) Solemnization – Act of getting married
(i) Ceremony & Registration
(ii) Minority position – violation of proper ceremony makes marriage invalid.
· Smaller minority – those invalid marriages are void
(iii) Majority position – violation of proper ceremony makes marriage voidable.
I) Qualifications of eligibility of parties
1) Must have capacity to marry
2) Be of opposite sex.
3) Not closely related by blood or marriage
4) Meet minimum age requirements
(a) Marriage of a minor can be annulled by a parent or guardian until the age of maturity.
(b) Ages 16-18 (with parental consent) – Voidable
(c) Below age 16 in most states – Void or Voidable
5) Sound physical/mental health
J) Conflicts in Law
1) General Rule:
(a) Marriage is valid everywhere if it is valid in the state where the marriage took place.
(i) Exception #1: A non-recognizing state does not have to recognize the marriage if:
· The non-recognizing state has the dominant relationship with the couple, OR
· The non-recognizing state finds the marriage offensive to deeply-rooted public policy.
(ii) Exception #2:
· The marriage is not recognized if a domiciliary marries in another state simply to avoid rules disallowing the marriage in his/her home state.
2) If the marriage is invalid in the state where the marriage took place, it is invalid elsewhere.
3) Restatement Second of Conflicts
(a) Marriages that would be invalid in State #1 are considered valid in State #2 as long as there are no strong public policies violated by the marriage.
K) Choice of Law & Same Sex Marriage
1) Evasive Marriages
(a) Marriages that take place in a state to avoid laws of the state of domicile are generally not recognized by State #2.
(i) Exception: If state policy is promoted by allowing the marriage, the marriage may be allowed in State #2.
2) Visitor Marriages
(a) States in which same sex marriages are not recognized should temporarily, and with limited purpose, recognize the marriage because of the same sex couple’s right to travel to State #2.
3) Extraterritorial Marriages
(a) If property is located in a non-recognizing state, the probate court should recognize the marriage to facilitate the succession proceedings.
4) Migratory Marriages
(a) Same sex couple marries and moves to a non-recognizing state.
(b) General Rule:
(i) A marriage created validly, should remain valid.
(c) In practice:
(i) Most states will not accept, as valid, the marriage of migratory same sex marriage if State #2 is a non-recognizing state.
(ii) If the marriage is recognized in the non-recognizing state, there will be two classes of same sex couples: long-term same sex couples that can’t get married in their home state and those that migrated there who are recognized to be validly married.
L) Rules of Evidence
1) Evidentiary Presumption
(a) A marriage that is valid where it is contracted, is valid elsewhere.
(b) A marriage is assumed to be valid unless its validity is disproven with any evidence of invalidity (CHECK THIS!)
(c) Example: Chain Situation
(i) A couple is married in State #1 (Common Law state) à Validity of marriage is litigated in State #2 (Non-common law state).
· Majority: Marriage is recognized in State
ked by:
(i) Either party in a marriage.
(ii) Third party: Heirs, children, or state
(c) Marriage can be declared void by:
(i) Annulment suit
(ii) Collateral suit
· Attacking a will or benefits from the government.
(d) Can be attacked at anytime, even after death.
(e) No defenses to a void marriage.
2) Voidable Marriage – Moderately vulnerable to attack
(a) Marriage exists, factually & legally, but a requirement of validity may be missing.
(b) Can only be attacked by a party in the marriage.
(i) While both parties are alive.
(c) Only declared void by directed suit for annulment
(d) Affirmative defenses can be raised.
R) Failure to comply with marriage procedures
1) No Penalty – Valid Marriage – Criminal sanctions may be available.
2) Marriage is voidable (Minority position).
(i) Burden to prove that marriage is void is on the attacking party.
S) Poligamy – Monogamy – Incest
1) General Info:
2) Enoch Arden Rule
(a) If one Spouse B is absent from the home for a number of years and the remaining spouse remarries, the second marriage will likely not suffer penalty.
(i) First marriage can be dissolved by the spouse that was deserted.
(ii) In some states, the spouse’s extended absence can raise a presumption of death if a specific peril of death can be shown.
3) Last in Time Doctrine
(a) Typically applies when two individuals both seek:
(i) Life Insurance benefits
(ii) Retirement death benefits
(iii) Social Security death benefits
(iv) Intestate succession or rights under a will
(b) The law presumes innocence, not criminality.
(c) Burden of Proof
(i) Burden of proof lies with the moving party.
· Preponderance of the evidence/Clear & Convincing Evidence
(ii) Moving party must prove that the first marriage should not be dissolved.(Majority Position)
(iii) Moving party must show that the 1st marriage is valid. (Minority Position)
(iv) Some states accept any evidence as rebuttal of the presumption.
4) Incest
(a) Void
(b) No Defenses
(c) Felony
(d) Rationale
(i) Defective in-bred offspring
(ii) Prevention of sexual abuse by dominant family members
(e) Most states hold adopted children to be barred as are biological children.
5) Affinity – Parental relationship by marriage, not blood
(a) These relationships are prohibited.
(i) Some states say that affinity restrictions apply even after marriage is over.
