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Family Law
University of Kansas School of Law
Peck, John C.

Family Law Outline

Professor Peck

Fall 2011

I) Changing Concepts of Family

A. Function v. Form

a. Family

i. Nuclear Family: F + M à Children

b. Definitions (8)

i. “Family” intended to extend protection to those who reside in households having all of the normal familial characteristics.

ii. For the definition – look at the statute (different for each state)

iii. City of Ladue v. Horn (1986) (1)

1. Zoning ordinance defined family as “one or more persons related by blood, marriage or adoption, occupying a dwelling unit as an individual housekeeping org.” à Purpose of ordinance: promote the health, safety, morals and general welfare

2. City (P) demand D to vacate their home – (Horn and his 2 children and Jones and her child) à Not married, but live together with joint finances

3. Valid marriage constituted by: (3)

a. Commitment to a permanent relationship

b. Perceived reciprocal obligation to support and care for each other

4. Constitutional Protections:

a. Free Association: marriage relations and sexual matters

b. Right to Privacy

c. Equal Protection: applies strict judicial scrutiny to any statutes that impact fundamental rights or creates suspect classes. Strict scrutiny requires such statutes serve a compelling gov’t interest by least intrusive means

i. Fundamental Right – right to marriage

ii. Suspect Class – race is suspect, gender sometimes

iii. Rational Basis Test – If equal protection is not affected, the statute need only satisfy the rational basis test à Local govt has a rational interest in protecting property value and zoning is generally a rational means of implementing that interest

5. Holding: There is a govt interest in marriage and in preserving the integrity of the biological or legal family

a. No state policy which commands that groups of people may live under the same roof in any section of a municipality they choose

c. No definition provided:

1. Braschi v. Stahl Assoc. – no definition of family in NY Statute

a. Ct was able to define family in this context (either broadly or narrowly)

b. Intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but should find its foundation in the reality of family life (7)

2. See: handout on different Judicial and Leg. Approaches to “family”

B. Making your Own Deal: Contractual Arrangements as an Alternative to Marriage

a. Non-married couples, living together – more than roommates but no intentions to marry à “functional family”

i. Non-marital contracting – explicit or implicit

b. Palimony

i. By Contract: Palimony generally applies to dividing property btwn non-married parties by contract or as an equitable remedy to unjust enrichment. May also apply to support

ii. Marvin v. Marvin (I) (1976) – P: Michelle v. D: Lee – lived together for seven years, she gave up her career to live with him, to take care of the home and be his companion

1. Contract: Either express or implied

a. Express Contract: may be oral or written

i. Valid and enforceable for non-sexual services such as house cleaning, maintenance, and companionship

ii. Contracts for sex (meretricious) are contrary to public policy

b. Implied Contract: Conduct within the relationship may create an implied contract

i. If one party quits their job there may be an implication of support during the relationship

ii. If there is a joint bank account (big clue) that is used by both parties, there is an implication that part of the bank account is hers

1. Equitable: Non-marital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received

c. Unjust Enrichment: consider net benefit from both tangible (money) and intangible (services) elements. In inequity is found, the court has the power to give the property to the rightful owner.

i. Constructive Trust: Ct can use its power to change the ownership of property, but needs another triggering cause of action, like fraud, unjust enrichment, etc.

ii. Resulting Trust: Court could obtain prop. from another that purchased it (not a bona fide purchaser) – involves 3rd party

d. FN 26: We do not pass upon the question whether, in the absence of an express or implied contractual obligation, a party to a non-marital relationship is entitled to support payments from the other party after the relationship terminates (25)

2. Holding: CA allows non-married partners to have a cause of action against their partners when they separate from one-another (25)

a. Express or implied contracts

b. Equitable and Legal Remedies – no clear distinction in this case

c. Did not preclude support payments

c. Generally no support without a contract

i. Marvin v. Marvin (III) (1981) – Neither party in a non-marital relationship is entitled to money for support after the relationship ends unless there is:

1. Unjust enrichment; or

2. An expectation of support by both parties

d. Theories for compensation of cohabitants

i. Watts v. Watts (1987) – cohabitants are generally not entitled to recovery of property acquired during unmarried cohabitation

1. Non-marital cohabitation – 12 yrs, 2 children – “marriage-like” situation

a. P assumed D’s last name

b. Filed joint tax returns

c. Joint bank accounts

d. Purchased real & personal property together as husband and wife

ii. Causes of action used to argue for compensation:

1. Contract: may NOT apply bcs of public policy and meretricious relationships

2. Joint venture or partnership

3. Divorce Statutes: Marriage dissolution statutes will NOT provide relief to unmarried cohabitants (possible in Wash. – see Warden)

4. Marriage by Estoppel: representation of marriage to a 3rd party is generally insufficient (41)

5. Partition of Property: requires an initial ownership interest. Generally applies to joint owners that cannot decide how to divide the interest

6. Accounting: Ct reviews the transactions to ensure equitable relief

e. Division of property without Common Law Marriage

i. Void as contrary to public policy:

1. Hewitt v. Hewitt (1979) – defining marital status should be left to the legislature. If the state has outlawed common law marriage then recognizing equivalent contractual agreements would be contrary to public policy

a. Jointly accumulated property of unmarried cohabitants

b. Equitable or Contractual basis for implementing the reasonable expectations of the parties unless sexual services were the explicit considerations (33)

ii. Division available for Domestic Partnerships:

1. Domestic Partnership: 2 adults who chose to live together in an intimate and caring relationship where an agrmt for joint responsibility for basic living expenses incurred during the domestic partnership. Must file a form with the county clerk stating that 2 ppl agree to be jointly responsible for basic living expenses

2. See: Eaton v. Johnson (KS) – married couple is divorced but continues to live together and acquire property à can equitably divide the property (supp. 102)

3. California Family Code (53)

a. §297 – Domestic Partners and Partnership

i. (5) – (a) same sex or (b) over 62 yrs old

1. Meant to assist certain classes of people

f. No federal jurisdiction in divorce cases

i. Anastasi v. Anastasi (1982) – Even if diversity of citizenship and the amount in controversy requirements are satisfied for non-marital partnerships and domestic relations à the federal courts will NOT hear divorce cases.

1. Federal Cts may hear contract cases; difference depends on how state law would treat the case: divorce or contract

C. State’s Interest

a. Marriage Defined

i. Status: marriage is formed by contract, but once married it is a status. Contracts can be dissolved by mutual agrmt. Marriage is status and can only be dissolved by divorce, even if both parties agree.

ii. KS §16 – Marriage

1. Civil Contract – one man and one woman only

a. All other marriages are declared to be contrary to the public policy of this state and are void. (Supp. 1) à added after other states permitted gay marriage (§23-101)

2. Ceremony – vows and members of the clergy

b. Courts favor finding marriage:

i. Fisher v. Fisher (1929) – The marriage on a steamship was legal, courts want to find a marriage as binding when they can

1. Rule: Marriage is a civil contract

a. Protect the spouse and entitle her to support

b. Protects the children by making them legitimate

c. Constitutional Issues Regarding the Regulation of Marriage

i. Religion

1. The Religious Heritage of Marriage

a. The idea of marriage changes from a Roman Catholic sacrament into a purely contractual matter

(170) – should be viewed as a fundamental right – right to marry –

i. Ct: no sexual discrimination, sex is suspect class but no violation here

e. Arg. 4: Definition of marriage as it is reflected in our marriage statutes constitutes an inherently suspect classification bcs it discriminates against homosexuals as a group

i. Ct: Rational basis for the def. of marriage

f. Holding: The state did not violate the rights of P by denying them a marriage license àThe Legislature may change the definition of marriage within constitutional limits, but the court will not (171)

2. Baehr v. Lewin (Hawaii 1993) (172 and email brief from Peck)

a. Express right to privacy in the HI state constitution, unlike the US Const.

b. Equal Protection Cl. Also built into the state const. – prohibits discrimination on the basis of sex

c. Must be justified by a compelling state interest

d. Statute – bans same-sex marriage, but legislation allows same sex civil unions

3. Goodridge v. Dept. of Public Health (Mass. 2003)

a. The Ct. ruled that there was no longer even a rational basis for the state to forbid marriage license to persons of the same sex (174) – liberty protections found in Lawrence and Loving

4. Congress Rejected Gay Marriage: Defense of Marriage Act – States are not required to give effect to any public act, record, or judicial proceeding of any other state, territory, possession of US respecting the relationship btwn persons of the same sex that is treated as marriage

a. KSA §23-101

II) Getting Married

A. The Promise of Marriage

a. Breaking the Promise to Marry

i. Whightman v. Coates (1818) – When two parties, of suitable age to contract, agree to pledge their faith to each other, and thus withdraw themselves from that intercourse with society which might probably lead to a similar connection with another; the affections being so far interested as to render a subsequent engagement not probable or desirable; and one of the parties wantonly and capriciously refuses to execute the contract, which is thus commenced, the injury may be serious, and circumstances may often justify a claim of pecuniary indemnification. (180)à The court sympathizes with the female party

ii. Stanard v. Bolin (1977) – Common-law action for breach of promise to marry à retained as a quasi-contract, quasi-tort action for the recovery of the foreseeable special and general damages which are caused by D’s breach of promise to marry

1. P Claims: Loss of reputation, mental anguish, mental health, expenses in preparation for the wedding, loss of pecuniary and social advantages (182)

a. Emotional/Mental distress damages usually claimed in Torts claims, not Contracts (but, the break of an engagement may fall into the type of Ks where one would expect to collect) (183)

b. Mental Health – maybe part (183)

c. Expenditures – Reliance on the promise (foreseeable) (182)

d. Loss of pecuniary/social advantages – marriages today are not considered property transactions (183) – immaterial in assessing the damages

iii. The ring: Vigil v. Haber (1994) – A policy exception to the rule that engagement gifts should be returned – given on condition and in contemplation of marriage, condition failed so rings should be returned

1. Under this exception, if the marriage is not finalized bcs the donor breached the marriage agreement, the donor may not benefit from his breach by regaining the ring given as an engagement gift (190)

iv. Kansas See: Heiman v. Parrish (Kan 1997) – conditional gift, so fault does not matter (Supp. 102)