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

Family Law Outline—Howarth

Random Defs
-Family Law cases are an unwritten exception and not allowed into the federal courts under diversity jurisdiction.

***The rights and duties of married people are dictated by state law***

-We have uniform laws on child support enforcement, custody; hence the government has a lot of indirect influence on Family Law.

-Each state has the power to regulate the family of its domiciliaries

-EVERY state has the power to determine the status of it’s own citizens

Sham marriages- to gain benefits i.e. Tax purposes, green cards, etc.

Domicile- 1. Must have capacity to prove domicile
2. Actual physical presence
3. Must show Intent to remain there, and abandon old one

Durational Residency Requirements-in 49 out of 50 states there is a time limit that you must live there to be a domiciliary and use their law to have SMJ.

Full Faith and Credit Clause- (4th Amendment) states have to legally recognize and enforce out of state decrees

Comity-Courts don’t have to but can recognize the decrees if other places i.e. Mexico

Collusion- Rare now. Parties perjure and make it appear there are grounds for a divorce that do not exist.

Survivors Shares- if spouse dies intestate the state will carve out a portion and give it to the surviving spouse. Sometimes 1/3-1/2 just for being spouse

Forced/Elective Share- If a person dies testate the surviving spouse can take what they’d get with or without the will.

Imputed income- “Hypothetical income”-a party voluntary reduces level of income to reduce amount they have to pay.

Seek work order- court ordered job search to pay for c.s. or alimony

Regulating the Marriage to make it VALID

Marriage-a legal status that arises out of a contract or an agreement and is formalized by some action that is taken by both parties

1. An agreement (contractual relationship of sorts)
2. “Act” the parties go through (judge, ceremony, etc)
3. Conjures up legal status or a label

-Once the mutual consent is executed by some act, a legal status is immediately created.

-Once this status has been created the state has the power to regulate it.

The Law of marriage is governed by 3 types of government regulation to make a marriage valid.

1. Consent
2. Capacity
3. Formalities

1.Consent- both parties must agree to the marriage. Fraud, Duress, or mist

the issue

3 different approaches to what happens if there has been non-compliance with states provisions

1. Marriage is immediately void. (4-5 states)
-Legislature may mean Voidable here
-Person attacking marriage has to shown the impediment

2. Majority Approach
-These states do not specifically condition the validity of marriage
-Failure to comply does not automatically render the marriage invalid
-Maybe a fine imposed, but not cancelled marriage
-The reason for this is b/c they want to be lax to vindicate the expectations of married people

3. States don’t care whether you comply…“Common Law Marriage”(10 states)
-“Informal marriage”
-Not a 2nd class marriage, exactly the same as a regular marriage

Common Law Marriage-To prove this you must show three things

1. Agreement
2. Continuous Cohabitation
3. Public Reputation as husband and wife

-These elements are extremely difficult to show