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Family Law
University of Dayton School of Law
Huffman, Mary Kate

Family Law Class Outline

I. Introduction
a. Family law is very discretionary and deferential to the trial court…
i. Much of family law is based on the “best interest” standard, based on competent and credible evidence
b. Definitions
i. Nuclear Family: The traditional family (father, mother, children together, and legally wed.)
ii. Intact Family: The traditional family without divorce.
iii. Non-traditional family: Non-marriage (cohabitation), Homosexual unions
iv. Broken family: Divorced families (a majority of family law is here)
v. Family law is the legal recognition that a unit has rights and responsibilities related to one another.
c. Origins of family law
i. Representative of Cultural ideals
ii. Derived from English Common law
iii. Representative of Social norms/values
iv. Traditional in some respects
v. Has a religious undertone
vi. Derived from English common law thus much of it is based on reasonableness, common sense, and fairness (equity), thus there is a lot of balancing of factors.
II. Marriage and the Law of Intact Families
a. Governmental regulation of the family
i. Justification is through the doctrine of Parens Patrie goes back to English common law where the kind was considered the “father of the people” and could intervene to help those that are weak and unable to care for themselves.
1. Parens patrie is used to help those that are considered legally incompetent (ie children)
2. Thus, government can step in during family break ups to ensure that incompetents are properly cared for.
3. The issue becomes how much regulation should be allowed?
b. Entering into marriage
i. Most states require a ceremonial marriage which is a license to validate marriage
1. Must have a license to perform marriage (not all judges and clergymen are entitled
2. The rationale on requiring a license is subject to rational basis review… There is a legitimate government interest in people understanding the consequences of marriage (Examples are waiting periods)
3. Marriage Requires three things for it to be legal
a. Consent
b. Capacity
c. Agreement
ii. Model Marriage and Divorce Act s. 206 – Solemnization and registration
1. Marriage may be performed by a judge, public official, religious denomination, Indian tribe that is authorized to perform. The parties must complete the licensure form and send it to the marriage license clerk.
2. If a party is unable to be present an authorized third party may act as a proxy (Uncommon).
3. Marriage license clerk registers the marriage
4. Not invalidated if person solemnizing wasn’t authorized if either party believed the person to be so qualified.
iii. Even with a failure to complete all of the formalities, the marriage is still valid as long as the parties have, in good faith, believed that have done everything they were supposed to
1. Only parties to a marriage can void a marriage
2. Outsiders can take actions to prohibit the benefits of marriage
3. State v. Denton, 983 p.2d 693: Defendant was charged with theft for withdrawing money from a bank account for personal use when the money was allegedly for charitable purposes. Defendant invoked the spousal privilege at trial to prevent defendant’s wife from testifying against defendant. The trial court allowed defendant’s wife to testify after it found that defendant’s marriage was invalid even though he was married in a church ceremony because defendant failed to obtain a marriage license. Defendant was convicted and appealed. The court reversed defendant’s conviction and held that defendant’s marriage was valid and that defendant’s invocation of the spousal privilege should have been honored. Wash. Rev. Code 26.04.140 required defendant to obtain a marriage license before marrying, but the statute did not invalidate a marriage for the failure to obtain a license. Marriage was a contract based on the intent of the parties. The court found that defendant and defendant’s wife intended to, and did, live together as a married couple. The error materially affected the trial’s outcome because defendant’s wife provided evidence that defendant knew that the account was not for defendant’s personal use.
iv. Void vs. Voidable marriages
1. Voidable marriage is where there is some defect in the marriage, one of the parties could take some step to void the marriage (annul)
a. A voidable marriage is valid until one of the parties moves and the court decrees that the marriage was invalid in an annulment action.
b. An annulment declares that the parties were never married and is different from divorce
2. Void marriages are inexistent marriages, they can’t be enforced because one of the parties can be married
a. There is some sort of fatal impediment (ie one of the parties is already married and tries to marry again)
3. Distinctions between the two
a. A void marriage doesn’t need judicial declaration of invalidity
b. A truly void marriage can be attacked (or ignored) by anybody, voidable marriages can only be attacked by the parties and sometimes only by one of them.
c. A voidable marriage can be ratified while a void marriage cannot
d. There could be financial consequences.
v. Common Law Marriage (Exception to Formality Requirements
1. There are no formalities, but the marriage is valid if requirements are met
2. As enforceable as any formalized marriage.
3. Few states still recognize the common law marriage
a. States that have outlawed common law marriage has done so prospectively
b. Problems with conflict of law and common law marriage (between states recognizing and states refusing to recognize
4. Requirements to establish common law marriage
a. Competent to contract
b. Accompanied by cohabitation as husband and wife
c. Treated as husband and wife
d. Reputed in the community and circle in which they move as married.
e. Meeting of the minds
f. Proven by cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community they reside.
g. Must be proven by clear and convincing evidence.
h. Totality of the circumstances used
5. Three things necessary for a common law marriage (per class)
a. Present mutual intent to be married
b. Co-habitation (of no necessary minimum duration)
c. Some indicia of marriage (known to community, hold yourself out to be married)
6. In RE Estate of Hall, 588 N.E.2d 203: Appellant filed a motion in the estate if decedent to have the administrator of the estate removed and to have her appointed in his place. She requested this based on her alleged status as the common-law wife of the decedent. The trial court denied her motion, and appellant sought review. Appellant claimed on appeal that the trial court erred by application of the wrong legal standard to the facts because the trial court viewed common law marriage with disfavor and apparently required a standard of proof greater than clear and convincing. The court affirmed. The court held that it was not persuaded that the decision of the trial court applied an incorrect standard. The court held that it was appellant’s burden, as a basic principle of appellate review, to affirmatively demonstrate in the record the error claimed and that in the absence of some showing to the contrary, there was a presumption that the trial judge performed his duty and did not rely upon anything in reaching his decision that he should not have relied upon. The court held further that there was probative and substantial evidence to support the judgment below.
vi. Putative Spouse Doctrine
1. Not married because there is a void marriage
2. Equitable doctrine used to protect the spouse with “clean hands”
3. California Family code s. 2251 and s. 2254
a. Determination is made that a marriage is void or voidable AND
b. Either or both parties believed in good faith that the marriage was valid
c. Court declares the party or parties to have the status of putative spouse.
d. If property division is in issue, divide property acquired during the union that would have been community property or quasi-community property if the union had not been void.
e. Support may be taken if the “marriage” is nullified.
4. In Re Estate of Vargas (California 1974): Appellant first wife married husband who subsequently married respondent second wife. Neither appellant nor respondent knew of their husband’s marriage to the other. In an heirship proceeding after the husband died, his estate was divided equally between appellant and respondent. Appellant challenged the order, contending that the evidence did not establish respondent as a putative wife and that even if she were so considered, an equal division was erroneous. The court affirmed the order dividing the estate equally between appellant and respondent. The court held that as innocent wives of a deceased practicing bigamist, appellant and respondent were entitled to equal shares of his estate which accumulated during the active phase of the bigamy.
5. Important to note here that if the putative spouse learns of the legal spouse and acquiesces for some time, they will lose their putative status.
c. Substantive Requirements
i. Constitutional Restraints upon Substantive Requirements
1. Prohibiting Marriage –
a. States cannot prohibit marriage
b. Marriage is a fundamental Right
c. Regulations prohibiting marriage must pass strict scrutiny (Narrowly tailored to effectuate an important government interest)
d. Key Question: Is the state saying you can’t marry at all? Or is it saying you can’t marry that person?
2. Regulating Marriage –
a. Marriage can be regulated for health or safety reasons.
b. Must pass rational basis review (Rationally related to a legitimate government purpose)
c. Restrictions that have been found to pass constitutional muster include
i. Age Restrictions: All states require only o

the trial court denied the motion. Plaintiff appealed and the lower appellate court affirmed. The court reversed the decision, vacated the judgment, and remanded for entry of judgment for payment of the outstanding balance plus interest in favor of plaintiff against defendant wife. The doctrine of necessaries applied to necessary medical expenses incurred by either a husband or wife, and either could be responsible for expenses incurred by the other. In this case, the court held that defendant wife was liable for the necessary medical expenses provided to defendant patient. All of the elements of a prima facie case were proven or stipulated to by the parties and no affirmative defenses were shown.
iii. Spousal Control over earnings and property.
1. Traditionally, marriage gave overriding financial power to the husband… This is gone now.
2. Now, the law about Spousal Control over earnings is statutorily driven
3. Ohio Revised Code Used as an example
4. Basically, Whomever’s name the property is in has dominion over the property
5. Statutory law governs the entering into of contracts, purchase of property, and the self-responsibility… All of which are individual to the person entering into the obligations.
6. A spouse has no legal right to interfere with the business of the other spouse
7. 10 states have community property systems which means the acquisition of property goes into a pot which both parties have the power of control over.
8. The three types of Gender-Neutral property management are
a. Often either spouse can act alone and bind the other
b. Sometimes both must consent
c. Sometimes sole management authority is allocated to one spouse on a gender neutral basis (usually by statutory exception… Ohio fits into this category)
iv. Varying the marriage contract
1. Traditionally, Marriage was considered a tri-lateral contract between husband, wife, and state. Free to enter in but once entered into, husband was head of the house, and required to support wife. Not the case anymore.
2. Prenuptial and separation agreements defining financial consequences of dissolution are likely to be inforced.
3. Unmarried cohabitants are increasingly permitted to contract with each other.
4. Marital contracts are limited to financial consequences (money property)
5. Contracts not enforceable when dealing with behavior.
6. Contracts involving an intact marriage won’t be enforced.
v. Consequences of Marriage
1. Names
a. Marriage itself does not change a wife’s surname.
b. Can change name in marital circumstances by habitual use
c. Can use two different names
d. Name-changing can be done by self-help, judicial name changing procedure, and by divorce
e. Requires an absence of fraud, misrepresentation or interference with the rights of others.
f. Some jurisdictions don’ allow a name change if the new name is bizarre, unduly lengthy, ridiculous, or offensive to common decency and good taste.
In RE Natale, 527 S.W.2d 402: The woman, an attorney, wished to change her name for professional reasons, including the fact that she wished to list her home telephone number in the telephone directory and her husband, a school employee, did not want their number listed under his name. The trial court had denied the petition on the ground that the woman was married and lived with her spouse, expressing concern that the granting of said petition could be detrimental to others, particularly creditors, in the future. The court disagreed, holding that the fact of a woman’s ongoing marriage was not prima facie evidence of detriment to creditors sufficient to deny her petition for change of name. The court reasoned that a person’s common law right to a name change had not been abrogated by any Missouri or federal law and that the custom of restricting a married woman’s right to use a surname other than her husband’s was an outgrowth of societal compulsion and economic coercion inconsistent with developments