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

Family Law- Professor Cooley HowarthUniversity of Dayton School of Law—Fall 2008Keyed to Textbook- Family Law: Cases, Text, Problems by Ira Mark Ellman
I.       Marriage: Ensuring the validity of marriage
A.   Marriage: a legal status arising out of a contract or agreement between two people; a special legal relationship which may be created by the agreement of the two people b ut which isonly recognized as a valid marriage when it meets certain criteria (formalities of celebration, capacity & consent
1.      Benefits: tax deal, property rights, income of spouse, government benefits
2.      Costs of marriage: not free to alter the terms of the contract
B.   Invalid marriage
1.      Evidentiary presumption: IN ALL STATES, that given any evidence of a marriage, the court will presume that the marriage is a valid marriage until declared to be invalid by a court of competent jurisdiction. The burden of proof is on the person saying that the marriage is not valid.
2.      Void: a marriage which has never existed in the eyes of the law
a)     may be attacked by the parties or interested third parties such as heirs, children or the state
b)    requires no judicial action to declare its invalidity (although judicial action is a good idea to be sure it’s void)
(1)   Direct suit for annulmnent
(2)   Through “collateral” cuit such as a suit attacking a will or an award of governmental or private death benefits
c)     Can be attacked at any time, even after the parties are dead.
d)    Incurable
e)     No defenses to voidness
3.      Voidable: one which does exist, factually and legally, but which is terminable by a court of competent jurisdiction because it suffers from some impediment to its validity
a)     Can only be attacked by a party to the marriage
b)    Can only be attacked in a direct action for annulment
c)     Only during the lifetime of both of the parties or some other statutorily determined period of time
d)    Curable: can raise an affirmative defense
e)     Deemed valid until successfully attacked by one of the parties in an action for annulment against the other party.
C.   3 main parts of valid marriage:
1.      The formalities of celebration: Agreement is formalized or executed by some action of the parties
a)     Licensure: permission to marry from the state
(1)   Applicants provide certain information such as age, existing relationship of the parties by blood or marriage, previous marriages. Some states require a physical exam.
(2)   Waiting period: Many states impose a 3-5 day waiting period. Either between application and issuance of the license or between issuance and performance of

d & wife
(3)   Reputation- treated & received as husband & wife in the community
(4)   Need at least a preponderance of evidence to show a common law marriage, and some courts say you must have clear & convincing evidence.
(5)   Evidence standard:
(a)   Inference (majority): circumstantial evidence is ok.
i)        Ex. Show that the evidence of reputation is weak. The state doesn’t have to be your domicile, but mere visits shouldn’t be enough. But the court may try to vindicate the expectations of the couple. Other courts may want more– testimony from community members, neighbors, etc.
(b)   Direct evidence (minority): must prove all of the elements.
(c)   Presumption (minority): The agreement is presumed if there is evidence of cohabitation & reputation.
e)     Putative marriage: Invalid marriage, but contracted by at least one party who believes it is a valid marriage, and b/c of some sort of impediment, it is invalid. Almost all states have adoptive putative spouse doctrine.
Purpose: to protect innocent parties. “vindicating expectations:”