Part I. Marriage and its alternatives
1. Marriage and the Constitution – Individual privacy
I. Griswold v. Connecticut
1. Facts: There was a Connecticut statute prohibiting (even by married couples) the use of birth control drugs or devices. The rational behind this was prevent extra marital affairs.
2. Holding: Here the court discovered a right to privacy in “emanations from” and the penumbras of numerous constitutional amendments based on societies respect for the marital relationship. The court thus struck down the statute prohibiting the use of contraceptives.
3. The court stated that the bill of rights and the constitution protects rights not specifically enumerated in the constitution
4. The court here used the highest level of scrutiny- which says the law must be absolutely necessary to accomplish its goals.
II. Eisenstadt v. Baird-
1. Facts: The statute in this case involved a similar law as in Griswold, except that it applied to unmarried persons.
2. The court says that it the statute violates the equal protection clause, because the unmarried people are being denied equal protection of the law.
3. The Mass. Statute was not about health- it was about morals-
1. Facts: in this case there was a statute saying that it was illegal to have gay sex
2. Court: Griswold established right of privacy in the marriage bedroom- Eisenstadt expanded some of that into single people-
3. This case overrules Bowers V. Hardwick- says that liberty extends to intimate choices for unmarried people- its not for the state to make this decision.
IV. Loving v. Virginia
1. At issue here was a statute saying that people couldn’t marry someone of another race
2. The court here held that there was a fundamental right to marriage that cant be blocked by the states.
2. Prenuptial Agreements: Marriage as a contract
I. Uniform Premarital Agreement act- UPAA- adopted by half of the states
1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
1. The party did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed, and, before execution of the agreement, that party:
i. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
ii. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
iii. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
2. If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support necessary to avoid that eligibility.
3. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
II. Individualizing marriage by contract: a prenuptial agreement seeks to individualize aspects of the parties marriage by altering marriage rights and obligations, personal or financial, that otherwise would be imposed by law.
III. Validity of antenuptial agreements: Valid prenups must meet all of the usual requirements of contract law. Beyond that, prenups have been subject to special scrutiny based on public policies relating to marriage, the parties confidential and intimate relationship etc.
1. Contract requirements:
1. Statute of frauds: most states require prenups to be in writing
2. Consideration- the mutual promises to marry traditionally served as consideration- the Uniform Premarital agreement act -enacted by about half of the states- purports do so without consideration
3. Risk of overreaching: The intimate relationship between intending marriage partners has caused courts to scrutinize prenups more closely than normal contracts.
2. Special scrutiny
1. Full disclosure: each party must make full disclosure of all material facts relating to the quantity, character, and value of property. Alternatively, a conscious waiver of full disclosure, especially when combined with adequate knowledge of the partners financial situation may be upheld.
2. Fair and reasonable provision – what is unconscionable?-: fair and reasonable economic provision for the wife may save the agreement if disclosure was incomplete. Some courts will uphold prenups if either full disclosure or appropriate economic provision is made- other courts expressly require both- In either event as a practical point contracts involving both full disclosure and fair provisions are much less likely to
ays that normal contract law should be applied to prenups–so absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreement. A rule that required you to get counsel would be contrary to contract law. The court still does require full disclosure of assets.
3. Look at and consider Problem 1
4. Estin – what should you consider when drafting a pre nup?
1. Disclose all of your assets-fully as possible
2. Do it early- well before the wedding
3. Make sure that the other spouse gets a lawyer and that there is no conflict of interest.
4. Draft carefully, i.e. mention divorce, use plain english
5. Attach financial documents, have people initial it
6. Put it in writing
7. Choice of law provision- under what law will the agreement be interpreted?
3. Marriage Regulation: Formal and informal Marriages
I. Formal validity: licensing, common law marriage
I. Consent: Valid marriage requires the free and voluntary consent of both parties who must 1) be competent and 2) intend to enter into marriage with each other at that time.
II. Intent: each of the parties must have the intent to be married. Thus a sham marriage or a marriage entered into in jest or for fraudulent purposes will not be valid
III. There will be statutory marriage requirements of each state that must be fulfilled- they generally include the following:
1. Marriage license
2. Blood test
3. Waiting period
4. Ceremony – solemnization
5. Recording of the marriage license: The marriage license must be completed by the person solemnizing the marriage and returned to the appropriate state office to be recorded. –
Important to note that the above things will commonly be waived and a valid marriage will be found to be had because of the marriage validation principle of courts wanting to find and encourage the marriage