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Family Law
University of Illinois School of Law
Wilson, Robin Fretwell

Professor Robin Fretwell Wilson
Family Law, Fall 2014
Overview of Course/Influence of Religion
·         Britney Spears case: when you are married for over 10 years things get serious and serious remedies are available
1.       Longer term marriage = spousal supported
2.       Quickie marriages result in annulments and there is typically an argument for no division of property because there was no time for comingling
3.       Federal law on family law governs money but largely stays out of it; left to States
·         Reynolds v. US
1.       Religion-Polygamy
2.       Laws can interfere with religious practice, but cannot interfere with belief
o    Don’t want to allow religion to be higher than laws of the land
o    Religious marriage not a valid argument
a)       Practice v Belief
b)       Marriage while sacred obligation is a Civil Contract
§  Civil Contract is what governs and we promulgate
§  Must publicly record the marriage and criminal for a religious figure not to
·         Catholic Charities of Sacramento Inc v. Superior Court (44-53)
1.       Courts reject the companies argument that covering contraceptives is unconstitutional
2.       CC claims burdened in 3 ways:
§  Religious autonomy (not a church org but made up of Roman Catholics)
§  Free exercise of religion (religious exemption is to provide it for religious activity and so the more secular the activity the more likely it must cover drug benefits)
§  Rational Basis (rationally serves legitimate interest of complying with rule barring interference with relationship bw a church and its ministers)
3.   CC doesn’t meet any prongs
·         Hobby Lobby
1.       RFRA test is that claimants can say the gvt rule shouldn’t apply if it can show substantial burden for exercise religion and that for this specific person or the government lacks compelling interest and has a less restricitive way
o    Amendment: RLUIPA for prisoners and prisoners rights; belief doesn’t have to be central to religion or compelling, can just be important to person [no sincerity test] o    Note: Ginsburg dissent: inequity bc having a baby means hard to go back to work and is inherent gender inequality
Who Counts as a Family; Advantages to being a ‘Family’
·         FACTORS:
o    [Ralph] intimacy, conjugality/sex, reciprocal duties
o    [Ladue], blood/marriage/adoption
o    [Moore], functional equivalent à permanence/stability
o    [Ladue/Hofstad], having children, contact, mutual caring, financial interdependence, co-residence, monogamous and committed
o    Exclusivity and longevity of the relationship
o    Level of emotional and financial commitment
o    Manner in which the parties have held themselves out to society
o    Reliance upon one another for daily service
·         Duties between two parties and how the state treats the unit
·         Laude: Blood, marriage, adoption: the nuclear family [Moore cited by Ladue] (1-7)
1.       Privacy and association rights asserted against the state
2.       Court says that they do not have a permanent relationship that demands reciprocal duties [p. 247 5(a)] and therefore are not a family for purposes of the zoning statute
·         IL annulment Statutes: Incapable of consummating allows annulment and 301(1) fraud in essentials of marriage does too
·         Marvin: (7-12 notes p. 15;15-21) supposed to bring cohabitation into marriage box, but actually didn’t do anything. Express agreement, implied partnership, quantum meruit, resulting trust
1.       She has a right to prove K but very thin remedy bc nobody signs K
2.       Has right to prove K by conduct; he said she said; court discretion and hard to get sympathies
·         Equitable remedies
1.       Constructive trust remedy: requires fraud; she has to have it and give it to him and have him put it in his name (inducement) but hard to get this in typical case
2.       Resulting trust: put item in other’s name when person pays it; gives back to payor
3.       Unjust Enrichment: ex

d or voidable
Putative Spouse Doctrine
·         RULE:
o    1. Marriage was void due to prior legal impediment treated as spouse SO LONG AS…
§  i. Marriage ceremony
§  ii. Cohabited à IL Rule
§  AND
§  iii. GF belief marriage was legally valid
o    2. CAN divide property (community property)
o    3. BUT CAN’T get alimony UNLESS either…
§  Statute allows it
§  Fraud
§  BF; OR
§  Bad Conduct
Common Law Marriage
·         RULE:
o    1. Residence (i.e., cohabitancy)
o    2. Capacity to marriage (i.e., able to marry) à No legal impediment
o    3. Present + mutual agreement to permanently enter marriage relationship
§  Ex: joint tax returns (b/c done under perjury)
§  Ceremony or license NOT required
o    4. Exclusion of others (“holding out”)
§  Ex: wearing wedding ring
o    5. Public recognition (objective standard)
§  Ex: joint tax returns (b/c done under perjury)
§  Subjective intent irrelevant
o    Remedies for Common Law Marriages: Same as regular marriages (I.e., alimony and community property)
Domestic Partnerships
·         CA RULE: Requirements:
o    Intimate and committed relation of mutual caring
o    File doc w/ Sec. of State
o    Neither married or domestic partner w/ someone else
o    Not related (same standard as marriage)
o    At least 18 y/o
o    Same Sex OR eligible under Title II/XVI of Social Security Act
o    Capable of Consenting
o    PROS of Dom. Parternships: 1) Same rights as marriage à during, after (alimony), widows, adoption/kids 2) Can terminate w/o going to court à pg. 6–7 of CA Domestic Partnership handout