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Family Law
University of Dayton School of Law
Laufer-Ukeles, Pamela

Family Law Outline

I. Introduction/Marriage
a. Marriage is 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 but which is only recognized as a valid marriage when it meets certain requirements defined by the state.
II. Insuring the Validity of Marriage
a. Marriage is either
i. Valid
1. Presumptions
a. All states: given any evidence of a marriage will presume the marriage is valid until declared to be invalid by a court of competent jurisdiction.
ii. Invalid.
1. Void
a. Never existed in the eyes of the law
b. Challenged by anyone; third parties, heirs, state, etc.
c. Can be attacked at anytime, even if the parties are dead
d. Required to judicial action to become invalid
e. These marriages are incurable; no defenses to a finding of voidness
f. Proof, when needed can be established through
i. Direct suit for annulment
ii. Collateral suit attacking will, death benefits, etc.
2. Voidable
a. Marriage does exist factually and legally
b. Can be terminated through court due to impediment
c. Can only be attacked by one of the two parties to the marriage
i. Through direct action of annulment (declaration of invalidity)
ii. During the lifetime of both parties or another statutory time
d. Curable: Affirmative defenses can be raised
i. Presumption: marraige is deemed valid until successfully proved invalid by one of the parties.
e. Knowledge of the impediment
i. If neither party new of the impediment, when it is cured the marriage is valid
ii. If both parties knew of the impediment, the marriage is invalid
b. Three Requirements (capacity, consent and formalities)
i. Formalities of Celebration
1. Statutory Requirements (know the void or voidable of each statutory requirement)
a. Licensure – State permission to marry
i. Licensing
ii. Waiting Period
b. Soleminization – act of getting married
i. Ceremony & registration
1. Minority hold a violation of proper ceremony as invalid
a. Smaller minority hold the invalid marriages as void
b. Majority holds the marriage voidable
ii. Proxy Marriage
iii. Violation of formalities
2. Common law Marriage
a. Carries all of the same rights and duties and ceremonial marriage
b. Traditional Three Elements
i. Agreement to marry
ii. Continuous cohabitation
iii. Public representation of husband and wife
c. 11 States & DC recognize common law marriage. Thereby disregarding statutory failures. Three views.
i. Must prove all three elements
ii. Valid marriage with clear and convincing circumstantial evidence
1. Majority Approach
iii. Evidence of cohabitation and representation as spouse is strong presumption of marriage
d. Burden of proof
i. Clear and convincing is required/common law is not favored
3. Putative marriage
a. Putative Marriage Doctrine
i. Purpose
1. Protect the good faith of the ignorant spouse
ii. Is not a valid marriage
iii. Treat putative spouse as legal spouse for legal reasons only
iv. Requires knowledge of impediment by one spouse and n

ge, burden shifts to prove termination
2. Trumps the other presumption because it appears to be indicating the expectations of the parties by presuming his most recent choice is valid
e. Physical health: Some state require this
2. Consent: must be all four
a. Intelligent (mental capacity)
b. Voluntary (no duress)
c. Free from fraud & serious (not a joke)
d. Scope of consent
i. Marriage of limited nature
1. Limited Purpose
2. Sham Marriage
ii. Majority says, unless you consented to all of the rights and duties of marriage then the marriage is invalid – some states it is void
iii. Minority says, if you said “I do”, you did/marriage is valid
e. If consent is missing one of the four, it is merely voidable, therefore raised by one of the parties during both of their lifetimes
3. Other notes to Substantive Requirements
a. Constitutional Considerations to state imposed restrictions
i. Substantive Due Process
1. Fundamental right
2. Compelling reason with narrowly tailored goal
b. Misrepresentation or concealment
i. Misrepresentation or concealment of a material fact which induces the consent to marriage by one of the parties constitutes fraud and will usually render the marriage voidable.
ii. Nature of the lie is relevant