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Family Law
University of Iowa School of Law
Estin, Ann Laquer

 
Family Law Outline—Estin—Fall 2014
 
 
 
 
I.                    EXAM
a.       2/3 essay; 1/3 18 MC questions
b.       Not both given out at same time
c.       Assume problems occur in fictional state, 2002 UPA and UIFSA and UCCJEA
                           i.      Local statutes same as those in Iowa; print a hard copy of this portion of the workbook
d.       When answering a question pay particular attention to the prompt
                           i.      Don’t ignore the other side’s argument but frame it in relation to party writing for              
                         ii.      List what you should ask about (i.e. did they sign a prenup when one isn’t mentioned there)
1.       Read for what is not there
                       iii.      Say what kind of info you would want and why
                       iv.      If they suggest practical lawyering concerns and policy issues, note those too
e.       Point for section number of statutes
                           i.      But don’t worry about including exact language unless relevant
f.        If you change your line of reasoning don’t delete prior stuff, just say “actually, I think ____”
g.       Case names
                           i.      Throwing in case names can be good, but don’t waste too much time on it—won’t be persuasive authority in this make believe state
1.       Can just note like, “this case is like a Michael H case”
h.       ESSAY
                           i.      2 questions, 1 weighted more heavily
                         ii.      Second will be more like a performance type test; will require you to pull out the relevant information from the problem
 
II.                 CHAPTER 1: MARRIAGE AND ITS ALTERNATIVES
a.      State Power Over Marriage
                          i.      While all governments seek to control marriage and personal relationships it is commonly viewed as a fundamental human right (Skinner v. OK)
1.      These marriage rights come from the term “liberty” in the 14th –DP
2.      Controlled by state rather than federal law
                       ii.      States may not deny access to divorce to those who can’t afford it
                     iii.      It is illegal to prevent marriage based on unpaid child support, but some other restrictions are OK
                      iv.      Prison Warden can’t require his consent for inmates to marry
                        v.      Marriage Historically
1.      18th Century England regulations
a.      Could get a parliamentary act allowing you a divorce (really only viable for rich men) or you could get an annulment if you could prove your marriage was invalid from the outset
2.      American Colonies
a.      Puritans—divorce was acceptable
b.      Anglican (more prevalent in the South)—pretty much impossible to divorce
3.      States didn’t used to address domestic violence because it violated “marital privacy”
                       vi.      Reynolds v. US
1.      Court rejected the argument that the First Amendment limited legislation criminalizing the practice of polygamy
                     vii.      Maynard v. Hill
1.       Court upheld a legislative divorce where a husband issued no notice to his wife
                   viii.      Meyer v. Nebraska
1.       Parents get to decide if they teach their kids foreign languages
                       ix.      Pierce v. Society of Sisters
1.       Parents can send kids to religious schools
                        x.      Griswold v. CN
1.      Criminal statute made it illegal to prevent contraception; D was educating people and providing them with it
2.      HELD; unconstitutional
3.      This (and the above cases) deal with the zone of privacy and the notion that marriage is sacred and shouldn’t be interfered with
4.      Rule: the gov can’t regulate the zone of privacy that is a marital relationship
5.      Concurrence: how can it be a fundamental right when it is regulated by all of the states? The reasoning doesn’t really make sense
                      xi.      Loving v. VA
1.      Does a criminal statutory prohibition on marriage solely on the basis of race violate DP and EPC
2.      HELD; unconstitutional—SS
a.      VA’s stated purpose was to uphold the racial integrity of its citizens—no mixing blood
3.      DP
a.       Choice of marriage is a basic civil right—violation
4.       EPC
a.       Gov: both races are punished equally, no violation
                                                                                                   i.      C: equal application doesn’t remove the racial classifications; plus the statute only applies to white people being with other races
b.      Privacy Rights Outside Marriage
                          i.      Eisendat v. Baird
1.      Dr. providing information about, and contraceptives to, young women
2.      Only charged with providing contraceptives to unmarried people; this is legal to prevent the spread of STD’s but she was given vaginal foam—purely contraceptive function
3.      Gov purpose: to protect the health and morals of its citizens (note: doesn’t make sense since STD prevention still available)
4.       Test:
a.       Classification must be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”
b.      EPC violation—This makes the distinction between married and unmarried people
5.      HELD; unconstitutional
                       ii.      Note: this case was seen as providing sexual privacy rights for single, married people
                     iii.      Lawrence v. TX
1.      Two men convicted for “deviant sexual intercourse”
2.      HELD; unconstitutional—EPC violation
3.      Bowers came before, upheld these laws based on the notion that it is “just sex”; this case changes that characterization (note: Bowers didn’t distinguish between the sexes as in this case, it just said no anal sex)
a.      No longer just marriage as a fundamental right, but the right to choose who you enter a loving relationship with
                                                                                                  i.      Two adults in a consenting relationship
4.      EPC challenge: distinguishes between gay and straight couples
a.      C: this law invites discrimination against homosexuals
b.      Moral reasoning is not a valid government interest
c.       Marital Agreements
                          i.      Marriage is a legal status that comes with rights

s never filed even though they lived together as a married couple for years and were married by an ordained minister
2.      Rules:
a.      Policy: Licensing statues are construed to favor the validity of marriages
b.      Though recording is mandatory, mere oversights are not going to challenge the validity of the sanctity of marriage
c.       Marriage requires spouses to be responsible for “necessaries”
                                                                                                  i.      Along with food, clothes, etc., medical bills count
                   vii.      Farrah v. Farrah
1.      This couple signed proxy in VA, solemnized in London and had the celebration in Pakistan, done under Pakistani law
2.      VA doesn’t recognize proxy marriages
a.      BUT if the place it was performed recognizes it then VA will too as long as it is not repugnant to public policy.
3.       Not valid because under Pakistani law but performed in London
4.       W wants equitable distribution, but can’t without a valid marriage
5.       Rule:
a.       A marriage that is valid in the place of celebration is valid everywhere, unless contrary to strong public policy of the forum.
6.       Note: no common law VA marriage here
e.      Common Law Marriage
                           i.      Rule:
1.       Cohabitation does not equal common law marriage
a.       The key question is did you agree to be married and did you hold yourselves out as being married?
2.       Common law and putative marriage under this allow the courts to extend legal rights and obligations of marriage to couples who behaved as if they were married.
a.       Served to legitimate kids of unmarried couples
3.       Only allowed in 12 states, but many other states recognize it: see below
                         ii.      Choice of Law: 2 Approaches
1.       (1) Lex loci contractus: the validity of a marriage is determined based on the law of the place where it is contracted (UMDA § 210)
2.       (2) Validity of the marriage is to be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage” (Restatement Second of Conflict of Laws § 283).
3.       In states with strong public policies against CL marriage, a marriage will not be recognized if the parties maintained their domicile in a non- CL marriage state at the time they are alleged to have contracted a CL marriage.
4.       Another group of states recognize out of state CL marriages by their domiciliaries so long as the parties have an established place of abode in the CL marriage state.