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Family Law
University of Dayton School of Law
Howarth, Cooley R.

Family Law
I.   Introduction – the state government has the power to regulate family law
A.      The state has a compelling interest because the family is seen as an institution involving the highest interests of society
B.       Each state has the authority to regulate its domiciliaries – family law is not an area of federal regulation, but, federal regulation is increasing
II. Marriage – marriage is a legal status that arises out of an agreement that is formalized  
      by some action of the parties
A.      Marriage is an act, a status, and an agreement
B.       Marriage is recognized defined and regulated by the states – terms and conditions of the marriage are dictated by the state, couple can not mutually agree to change
1. Three types of regulations – must satisfy all to have a proper marriage
a.        Capacity – need to meet certain qualifications
                                                                           i.      Must be of opposite sex
·          NO state recognizes same sex marriages as valid marriages
·          Vermont statute recognizes “civil unions” and Hawaii recognizes “domestic partnerships” that provide the same costs and benefits as marriage
                                                                          ii.      Must be of proper age – SPLIT – 2 patterns
·          Some establish a minimum age, age of parental consent, and age of marriage
·          Some only recognize a minimum age
·          What happens if violated? – SPLIT
a.        Some states hold the marriage is void if parties do not meet minimum age
b.        Most states hold the marriage is voidable
·          Some states only allow the underage party to seek annulment based on these grounds and others have created an exception to allow parents to challenge
·          Affirmative Defense – improper age is curable – when parties reach the age of consent, they ratify the marriage
                                                                        iii.      No incestuous Marriages – these marriages are void
·          States are not in agreement as to what qualifies as incest, but all consider incest a felony
                                                                        iv.      Bigamy – can only be married to one person at a time
·          Evidentiary presumption – when there are two or more marriages
a.        The last in time is presumed valid
b.        All prior marriages are presumed terminated by death or legal termination
·          The rationale for the presumption is to protect the expectations of the second spouse
·          Evidentiary presumption is inconsistent with public policy favoring monogamy and the presumption that marriage is valid
·          Presumption is rebuttable – SPLIT
a.        Some states require the first spouse to prove the first marriage was not terminated – tough to prove the negative
b.        A minority of states consider the presumption rebutted if the first spouse can show evidence of the validity of the first marriage – such as a marriage license
                                                                                                                                                   i.      The second spouse can still win by showing the first marriage was terminated
                                                                          v.      Proper Physical and Mental Health
b.        Consent – to agreement
                                                                           i.      Must be Intelligent – must have mental capacity to understand the nature, effects, rights and duties of marriage
·          SPLIT – some states only allow the incompetent spouse to challenge, but some allow the competent spouse to challenge when the competent spouse did not know of the incompetency
                                                                          ii.      Must be voluntary – free from duress
·          This is a subjective test – did this person feel pressured
                                                                        iii.      Must be based on truthfulness – free from fra

type of proceeding
ii.   Suffers from a serious impediment – ex. bigamy
b. Voidable – the marriage exists in fact and in law, but it is terminable by  
     a court due to impediments
i.         Not as vulnerable because it can only be attacked by one of the
parties (during the lifetime of both parties) in a direct action for annulment
                                                ii.   There are defenses
·          Do not trust statutory language – most courts interpret statutes in a way that preserves the validity of the marriage 
D.      Failure to Comply with Formalities – SPLIT – States take one of 3 approaches
1. Failure to comply with formality statutes makes a marriage invalid –
     voidable
2. Validity is not conditioned on requirements of formalities – ex. Carabetta (licensing statute was directory – the couple believed they were married and the court refused to interfere with the expectations of the parties)
a. These courts interpret licensing and solemnization requirements as
     directory rather than mandatory
b. Courts want to “vindicate the expectations of the parties”
                      3. Formalities do not matter – These 11 states adopt Common Law Marriage
a.   A Common Law marriage is equal in rights and duties to a ceremonial
     marriage
b.        Other states will usually recognize a common law marriage formed in 
      an accepting state
c.        Elements of Common Law Marriage – the person asserting the marriage has the burden of proof
i.    The only requirement used to be a Present Mutual Agreement 
      to Marry
ii.   Now, courts require
Continuous Cohabitation – no amount required