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Family Law
University of Illinois School of Law
Tarr, Nina W.

 Tarr- Fall 2013- Family Law Outline
      I.            Entering Marriage
a.      Is a marriage a contract or a status?
                                                              i.      Status: State creates relationship
                                                            ii.      Contract: Parties create relationship
                                                          iii.      Maynard v. Hill
1.      FACTS: H. left W. without support to go to West Coast, promised to send for her later. W. never heard from her until she learned their marriage was dissolved and H. had remarried in OR.
2.      HELD: Marriage is a status too- State has power to regulate the relationship.
3.      In most states now, need to give due process notice of divorce
b.      Formalities of Marriage: What are the Statutory Requirements a State Expects Us to Have?
                                                              i.      Basic Formalities
1.      Waiting period, blood test, license, authorized officer presiding
2.      Some states have created courses to make it harder to get married- prevent hasty marriages
                                                            ii.      Nelson v. Marshall
1.      FACTS: Couple married without application for a marriage license and the groom died the following day.  Couple thought they could complete the paperwork after. 
2.      STANDARD: State may implement reasonable regulations that don’t interfere in a significant manner with decisions to enter marriage.  
3.      HELD: No valid marriage.
4.      Directory State Statutes: Excuses/forgiveness. Mandatory statutes: No excuses!
c.       Common Law Marriages
                                                              i.      Requirements – by clear and convincing evidence
1.      Present intent
2.      Agreement to enter into marriage
3.      Cohabitation
4.      Public assumption of marital duties
                                                            ii.      Crosson v. Crosson
1.      FACTS: Bruce and Barbara were married but divorced. After divorce, Bruce asked Barbara to come back and be his wife. Unknown to Barbara, Bruce married another woman. Barbara sued for divorce, claiming she was Bruce’s common law wife.
2.      HELD: Valid common law marriage. No impediment to remarriage. Wife didn’t remove wedding band. Parties filed taxes together.  Husband’s other relationships doesn’t make the marriage less valid.
d.      Putative Marriages
                                                              i.      Definition
1.      Marriage where one or both of the parties were ignorant of an impediment that made their marriage invalid. 
2.      Must be contracted with a good faith belief the marriage was valid
3.      Cohabitation not required.
                                                            ii.      Rebouche v. Anderson
1.      FACTS: Doris married Wheeler and divorced him (mother took care of divorce).  Doris married Ramsey, who allegedly said he’d get a divorce and he remarried.  Doris thought she was free to marry and married Rebouche.
2.      RULE: Must have an honest and reasonable belief that the marriage was still valid and no legal impediment existed.  Question of good faith is subjective and depends on external circumstances.
3.      HELD: Doris ≠ putative spouse. Previously was divorced and should have known she had to get a divorce before marrying Rebouche. Failed to contact Ramsey to determine whether she was divorced so no good faith.
e.      Marriage by Proxy
                                                              i.      Definition: Attempt to comply with statutory marriage requirements by designating a stand-in who appears for the absent prospective spouse
f.        Last-in-Time Marriage Presumption
                                                              i.      MAJORITY: In order to rebut the last-in-time marriage presumption, the prior spouse must come forward with documentary evidence that no annulment or divorce was entered in any jurisdiction where the parties resided or where they might have reasonably resided.
                                                            ii.      MINORITY: All a prior spouse has to do to rebut the presumption is offer evidence of a valid marriage and then the burden of proof shifts to the next spouse to demonstrate there was a divorce of the 1st marriage.
                                                          iii.      Hewitt v. Firestone Tire & Rubber Co.
1.      FACTS: John married Barbara. Couple was in TX, MD. John left Barbara and allegedly told her to draft the papers. John remarried. John died and Barbara filed for social security benefits.
2.      RULE: Last-in-time presumption- damages should be given to surviving spouse and children. 
3.      ANALYSIS: Contesting party must attempt to document the absence of divorce: holds the burden of showing no divorce was entered in jurisdictions where parties resided or where party reasonably could’ve obtained a divorce decree.
4.      HELD: Second wife= wife because 1st wife failed to rebut the presumption of the validity of John’s 2nd marriage.
   II.            State Regulation
a.      Zablocki v. Redhail
                                                              i.      FACTS: Paternity action instituted against Redhail, alleging he was the father of a girl born out of wedlock (non-custodial) and hadn’t made support payments. Child was public charge since birth.
                                                            ii.      RULE: WI statute: Requires non-custodial parents attempting to marry to obtain a court order before getting a marriage license.  Can only get it if submits proof of compliance with child support obligation and that child is not likely to become public charge.
                                                          iii.      ANALYSIS: People in affected class will never be able to obtain the necessary court order because they lack financial means- serious intrusion into freedom of choice- must be closely tailored: strict scrutiny
                                                           iv.      HELD: Violates 14th Amendment EP clause. Wisconsin could find other ways of addressing interest of child welfare.
                                                             v.      Concurrence: Statutes violate DP clause- doesn’t have a “fair and substantial relation” to the object of the legislation
                                                           vi.      Dissent: State has strong interest in securing as much child support as parents can pay.
b.      Lawrence v. Texas
                                                              i.      FACTS: Police found two men engaging in sexual conduct in their home
                                                            ii.      RULE: TX statute criminalized same-sex sexual conduct.
                                                          iii.      ANALYSIS: Sex= private human conduct.  Liberty is protected by Constitution and allows homosexuals this choice.  TX statute furthers no legitimate state interest that can justify private life of individual
                                                           iv.      HELD: Unconstitutional; Violates DP- Intrudes on liberty interest.
                                                             v.      Dissent: Should not have applied rational basis. Fundamental right should be held to strict scrutiny and it’s not deeply rooted in the nation’s history.  
c.       Capacity and Intent to Marry

o marriage.
3.      HELD: Marriage of a person incapable of contracting for want of understanding is voidable.
h.      Consent Requirements: Fraud
                                                              i.      Marriage by fraud= voidable
                                                            ii.      Must be material fraud (but for fraud, there would be no marriage)
                                                          iii.      Must affect the essentials of the marriage (affect possibility of normal marital cohabitation
III.            U.S. v. Windsor and Conflict of Laws, and Annulment
a.      U.S. v. Windsor
                                                              i.      FACTS: Windsor and Spyer, same-sex couple residing in NY, lawfully married in Ontario. Spyer died and left her estate to Windsor.  Windor was barred by §3 of DOMA, that says marriage only between man and woman
                                                            ii.      HELD: Unconstitutional under DP Clause of 5th Amendment. DOMA= overly broad- just expressing animus against gay marriage with no government interest
                                                          iii.      DISSENT, Scalia: Embarrassing to accuse Congress of animus in enacting DOMA.
                                                           iv.      DISSENT, Roberts:  Arguments of legislative history and name of act indicating principal purpose to harm= insufficient evidence
                                                             v.      DISSENT, Alito: Sovereignty rests with the people. Since Constitution is silent on same-sex marriage, SCOTUS has no jurisdiction.
b.      Conflict of Laws: Which Marriage Law Governs?
                                                              i.      History
1.      CL: Validity of marriage should be determined by the state that has the most substantial relationship to the parties of a marriage.
2.      Modern view: A marriage which satisfies the requirements of the state where the marriage was contracted will be recognized as valid everywhere unless it violates the strong public policy of another state which has the most significant relationship to the spouses and the marriage.
                                                            ii.      Randall v. Randall
1.      FACTS: Robert didn’t get divorce decree until Oct. 4, 1963, so under NE law, wasn’t free to marry anyone anywhere else until Apr. 5, 1964.  Both he and Feather knew, but in March 1964, Parties traveled to Mexico and underwent 2 ceremonies- neither was valid in Mexico even if it substantially complied with requirements of NE law.
2.      HELD: Both marriage ceremonies in Mexico were invalid so marriage was invalid everywhere.
c.       Annulment of Marriage
                                                              i.      Divorce vs. Annulment
1.      Divorce terminates valid existing marriage
Annulment is a declaration that no valid marriage ever occurred due to a legal impediment existing at the time of the marriage ceremony.