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

Cooley Howarth, Family Law Spring 2011
Family Law
        I.            Establishing a Valid Marriage:
a.       Marriage – a legal status arising out of the consent, formalized by some action (ceremony), defined by the law. 
                                                               i.      The state has a monopoly on divorce/dissolution or annulments
                                                             ii.      14th Amendment DPC does not mean that freedom to marry is absolute, but classification upon race is subject to the highest level of scrutiny. 
                                                            iii.      A marriage is a contract with only two names all of the rules are filled in by the state. 
                                                           iv.      There are evidentiary presumptions to marriage:
1.       If there is any evidence of a marriage a court will presume the marriage valid. 
2.       Until a court states that a marriage is invalid, it is still valid. 
3.       Death or legal action presume the end of the marriage. 
b.       Three Elements surrounding the creation of Marriage:
                                                               i.      Consent – not fraudulent, under duress, and actually serious (U of M frat boyz).
1.       Intelligent Consent: Must be able to give consent (“of sound mind” – GA code). 
a.       ∆: continued cohabitation after either one party found out about it, after the other party came “down from their high,” or they became able to have the capacity to consent to the marriage.  (Ratifies the marriage).  Ex. Sane, Sober, etc.
2.       Voluntary: Must be free from duress (voidable). 
a.       Courts take a subjective approach – look at the scienter of the non-voluntary consenter.  If they actually did not believe that they were voluntarily making the decision, then the marriage is voidable. 
                                                                                                                                       i.      It is not whether or not it was reasonable, but whether the person believed it.
3.       Free From Fraud: Courts are very reluctant to find fraud because the application is not to any material misrepresentation like contracts, but rather to a misrepresentation to the essentials of marriage.  Most courts will render this marriage voidable. 
a.       Fraud is Split:
                                                                                                                                       i.      Majority: But-for test; but-for this lie, I would not have married this scumbag. 
1.       Further split into objective vs. subjective, as to whether it should deceive a reasonable person.
2.       Does it need to be material enough for a reasonable person not to marry you.   
3.       ∆ to the But-for:
a.       Extended lapse of time: this lie was apparently not very material to the essentials to marriage if the marriage lasted 10-15 years without the truth, exception – fertility. 
b.      Continued Cohabitation
c.       Goes against the integrity of the institution of marriage (gigolo). 
                                                                                                                                     ii.      Minority:  Lies of danger or impossibilities that will affect the obligations to the nature of marriage (Sex and Health). 
                                                                                                                                    iii.      Examples: Fertility or willingness, or ability to engage in sexual relations, sexual orientation, or sexual diseases (All, but four states allow annulments when there are unknown venereal diseases). 
                                                                                                                                   iv.      Examples Not Allowed: Wealth, Temper, or Character. 
b.      Limited Purpose or SCAM marriages:
                                                                                                                                       i.      Think Proposal or I Now Pronounce You Chuck & Larry
                                                                                                                                     ii.      Some states look at the scope of consent:
1.       Consent was given, but without the right motive or reason.  Therefore to Approaches are in order, rendering these marriages:
2.       Invalid (Majority):
a.       Did not intend the rights/duties of marriages.  Not a “normal marriage” so it is not only voidable, it is void. 
b.      R: Why should we hold a marriage valid if it is a scam. 
3.       Valid (Minority):
a.       Did not intend the rights/duties, but you still committed to the marriage, therefore you are stuck with them.  (What Happens in Vegas – Aston Kutcher – if it had a purpose). 
b.      R: Deters these kinds of marriages, and what is the definition of a “normal” marriage anyways. 
                                                             ii.      Action – formalized by action
1.       Judge/clergyman, or
2.       Agreement executed
3.       Failure to obtain a License:
a.       Majority – renders the marriage valid (Denton case).  May get a misdemeanor in some states, but it is still valid. 
b.      Minority (10 states and D.C. – Common Law Marriage) – failure to comply with the statutory standards does not matter because you have a common law marriage.  Usually must prove by preponderance of the evidence (voidable), (however there are some states that recognize void clear and convincing – OH).  Elements to constitute a common law marriage (used to be only the agreement, but more obstacles = less fraud).  Also does not matter if the spouses ever had domicile in that state:
                                                                                                                                       i.      Agreement
1.       Majority – will infer agreements only where a preponderance of evidence shows continuous cohabitation and reputation
a.       Some require direct proof  (clear and convincing)
2.       Minority – will infer an agreement on any evidence of continuous cohabitation and reputation. 

                                                                                   ii.      Some states recognize that adopted brothers and sisters can marry some say no,
1.       R agst: is that the adopted child by statute is to be considered the natural born child of the two parents in custody. 
                                                                                                                                    iii.      MMDA – adopted brother and sister, half-or-full blood brother or sister, an ancestor cannot marry a descendant, and uncle & niece, and aunt & nephew whether they are blood related or not. 
4.       Conditions of Health
a.       Not lying about is just cannot marry that person, if they hide it from you. 
b.      Venereal Diseases can prevent one from getting marriage, almost all recognize this, but 4 do not. 
c.       If there is a physical or mental incurable disease that is incurable:
                                                                                                                                       i.      Epilepsy
                                                                                                                                     ii.      Impotency
5.       Different Sex
a.       Majority:  Marriage can only be a man and woman and thus same sex marriages are void, but there is a further split in the majority:
                                                                                                                                       i.      Accept as domestic partnerships pursuant to the marriage that the minority states recognized (Moved from MA to OH). 
                                                                                                                                     ii.      Some do not recognize even domestic partnerships.
b.      Minority:  Only allowed in 4 states and D.C. (Vermont, Iowa, Massachusetts, and New Hampshire.)
c.       No federal court has found that same sex marriage is unconstitutional. 
d.      State DOMA (Defense of Marriage Act) – must recognize a marriage valid if it was validly obtained.  However, if it is same sex, courts will just state that they are valid in the celebration.  Further: 
                                                                                                                                       i.      10 states recognize civil unions or domestic partnerships:
1.       Some give all rights,
2.       Some don’t give any rights,
3.       All Allow Divorce.