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

Family Law: Fall 2014: John C. Peck

Changing Concepts of Family:

Chapter 1

A. Function v. Form:

-Narrow definition- Laude (MO 1986) p. 1 of casebook- City ordinance said only a single family could live in a house. An unmarried couple with 7 total children did not qualify. There was a rational basis for this legislation because of the city’s police power to prevent a decline in property values.

-Very broad definition- Brachi v. Stahl p. 6 (NY 1989)- Gay partner could live in an apartment after his partner died, even though the partner was on the lease because a NY statute said “family.” The court said the purpose was people living together like family- not a strict definition.

-Relations focus- Moore v. City of East Cleveland- Contains a definition of family that focuses on relations and has many requirements- can include other spouse’s kids.

B. Making Own Deal

Palimony (contract before marriage can exist- Marvin v. Marvin p. 6 (CA 1976)- Women doesn’t marry man but takes his name. Courts should uphold express or implicit contracts. Women relied on promise to be taken care of by giving up her career. Women doesn’t get money in the end because man is not unjustly enriched and she wasn’t able to show proof she was promised anything. Important because it establishes the idea courts might enforce non-martial contracts. Known as palimony.

Many look to equitable remedies- Notes case: Watts p. 14- Most courts use equitable remedies.

Some don’t want palimony- Notes case: Hewitt p. 14- Would not allow non-married spouse money. State had a ban on common law marriage, fault divorce supported marriage, and not putative(generally considered to be-in this case married) because no ceremony.

Some consider factors for if enough to say the couple is in family relationship: Hoftstad v. Christie p. 14 (Wyoming 2010)- Unmarried couple. The man bought a home and divided it with woman. He sought to leave it because no family relationship. The 3 factors are: Unequal contributions, family relationship, and donative intent. Here, the family relationship existed because they had lived together for 10 years and had 3 kids. Beyond that, there was donative intent in the division of property he signed, which overwhelms the man’s unequal contribution of the mortgage payments.

Some award different types of property: Notes show martial benefits like pensions have been awarded when the relationship appears familial (Owens v. Auto. Machinists Pension Trust 2009 9th circuit p. 19. May also award property in a way that best follows an express or implied agreement- Byrne v. Laura (CA 1997, p. 19)


Article 15, Section 16:

(b)- No Relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage

23-2501- No same-sex marriage. “between two parties who are of opposite sex.”

23-2502- Common law requires the person be 18

59-504- If you die intestate the surviving spouse gets all your property if you have no kids, and ½ goes to the spouse. But 59-505 you don’t get an interest if the property is in a different state and no interest was conveyed.

Legislation Q’s:

*Ban or create a cause of action?

*Leave it to courts?

C Status Relationships

1 Domestic Partnerships- Notes on page 27

2 Civil Unions:

*Public policy of state is important: B.S. v. F.B. (N.Y. 2009)- Did not recognize an out of state Buddhist marriage because it did not follow the public policy of New York.

Kansas: No Civil Unions- Article 15 Section b.

3. Same-sex marriage

Court recognizing a right for gay couples- Kerrigan v. Commissioner of Public Health p. 36(CT 2008)- Right for gay couples based on equal protection, marriage is a fundamental right, quasi-suspect class, changing times

Massachusetts allowing it- Goodridge v. Dept. of Public Health (Mass 2003)

Courts have been willing to relook- Baehr v. Lewin (HI 1999)

DOMA unconstitutional- Windsor (US 2013), Supp. P. 67

No Standing for DOMA- Hollingsworth (US 2013), p. 69


Sodomy- 21-5501- Sodomy is anal intercourse, oral sex, .

21-5504 Criminal Sodomy for same-sex- If at least 16 it’s a crime.

No-same sex: 23-2501- “two parties who are of the opposite sex.”

23-2508: Strong public policy not to recognize out of state same-sex marriages.

D Free Exercise of Religion

State can ban bigamy- Reynolds v. United States (U.S. 1878)- State can ban bigamy. They can regulate conduct but not belief.

Kansas: Bans Bigamy- more than 1 spouse not okay 21-5609

Bill of rights- Free Exercise Amendment 1

E Jurisdictional Basis

Federal courts not going to hear- Anastasi v. Anastasi p. 53 (N.J. 1982)- Federal courts will not hear divorce, alimony, or child custody cases, even if they otherwise meet the requirements to get into Federal court.

Recognize marriage unless it’s against strong policy of state- Fisher v. Fisher p. 56 (New York 1929)- Marriage on a boat is still a marriage because it occurred in another state and New York recognizes out of state marriages. Unless a marriage is against the strong public policy of a state it is recognized.

F Constitutional Parameters

Birth control right- Griswold v. Connecticut p. 59 (Connecticut)- 1- speech, 3- soldiers in home, 4- unreas


C Statutory Formalities

Can often get married without a license- Carabetta v. Carabetta p. 119 (CT 1980)- Marriage valid even without a license because there was no statutory requirement of a license. Could also still be a common law marriage if there were a license requirement in the statute.

Kansas: 23-2504: says may issue after a license (seems to indicate need for a license).

D Anulment

1 Void-Voidable+ fraud

Fraud requires something like concealment- Meagher v. Maleki (Cal. Ct. App. 2005, page 124)- Someone marrying you only for money is not an adequate basis to claim the marriage is a fraud and warrants an annulment.

Kansas: 23-2503: Bans incest including first cousins.

23-2702: The district court should grant annulment if: 1) the marriage is void for any reason. 2 The contract for marriage is voidable if it was induced by fraud.

b) The court can annul if there is a mistake of fact, lack of knowledge of a material fact or any other reason justifying recission of a contract of marriage.

Judge Gard says (Peck notes): Incapacity for want of age or understanding. Incest- 23-2503. Bigamy- Fitzgerlad (1986)- supplement. Gay Marriage 23-2501 and KS constitution Article 15 section 16.

Some use “but for test.” Wolfe v. Wolfe (Ill. 1979), p. 89 of supplement- Essentials of marriage make marriage voidable. Wife told husband the 1st husband was dead. Man was deeply Catholic, wouldn’t have married without. Uses “but for test”- would the marriage have occurred but for the lie the women told. This fraud went to the essentials of the case.

Reinstatement of alimony (note, p. 125)

If a stat., follow it (Utah, alim. Terminated unless 2nd marriage void ab initio, then can be reinstated)

Caselaw: different approaches

Case-by case, no certainty (see p. 125 for factors)

Automatic termination (spouse looking to another for support)

Void (alim. restored) versus Voidable (alim. not restored)


K.S.A. 23-2902: any decree under 23-2711 may award maintenance

K.S.A. 23-2711: includes any action under cpt. 23, art. 27—thus, divorce, annulment, or sep. maintenance