Family Law Outline

Family Law Short Notes
 
 
Themes of Family and Family Law
Norms in society play a huge role
Law can 1) ignore the changes; 2) force changes, or 3) reflect the changes when norms have changed
50% of marriages end in divorce (40% of first marriage/60% of second)
Changing GENDER ROLES (opposite gender family)
If it is not specified, always do BOTH CP and ED
How view of marriage shapes the laws
What is parenting
Individual Interests v. Needs of State
Third Party K
Changing Sexual Mores
Women’s Movement
 
Purposes of Marriage
1. Affective
Love, Emotional support
Companionship
Commitment 
2. Social
Tradition (social and religious)
Social legitimacy (kids)
3. Economic
Financial Security, Citizenship
Property Rights
Legal PRIVILEGES
Health care, spousal immunity, hospital visitation, medical decisions, life insurance
 
Three Party Contract
H, W, State
State
Promotes
Registers marriage, keeps track of property, Administrative convenience
Form of Social Control: conform to status quo
Economic Support System: state would otherwise have to provide for some of these things (women and children)
Monogamy – less disease and less deviant sexual behavior
Property passage simplicity
Regulates
Age
Form (license and solemnization)
Economic consequences upon death and divorce
Property Division
 
 
The Constitutional Right to Marry
 
·         Loving v. Virginia: 
Facts: Loving white man married black woman in DC and when returned to VA, they were convicted for violating a statute which forbade interracial marriage.
Held: State anti interracial marriage statute, discriminatory on its face, violates EP.
Rejected the argument that it is not an EP violation because they are discriminated against equally
Clause: EP’s purpose is to eliminate invidious racial discrimination.
Scrutiny: Strict b/c RACE
COMPELLING state interest and NARROWLY TAILORED
Marriage is one of our “basic civil rights of man” and is fundamental to our “very existence and survival.” The state failed to prove the law is necessary to the achievement of an overriding government interest.
Two Bases for Court’s Decision:
EPC: Racial classifications are suspect and cannot be upheld when there is patently no compelling government interest. Invidious racial discrimination is not a legitimate objective and the purpose is preserve white race
DICTAàcourt addressed this right under DUE PROCESS
Since the court only applied EP, it just means you can’t deprive it based on RACE (or something else that would require strict scrutiny), so it leaves the question open of whether there is a right to marry guaranteed by DP when there is no strict scrutiny under EP
Lex Loci: marriage valid where formed is valid everywhere except public policy
VA violated this rule when it wouldn’t recognize the marriage, so in essence the court was saying, interracial marriage is not sufficient public policy justification
 
Zablocki v. Redhail
Facts: SC invalidated a statute prohibiting people who had fallen behind in child support to marry (unless current on child support and unlikely kids will be public charages) – court will treat the new marriage as void and provides criminal penalties
Held: THIS Statute significantly interfered with the fundamental right to marry, but REASONABLE regulations on marriage are ok
New Test: Does it SIGNIFICANTLY BURDEN?
No à Rational Basis
Yes àsufficiently important state interest and closely tailored
Courts have been flexible
Clause: EP again because only implicated WEALTH and DIVORCED people
An indigency exception may have made this statute more viable
Scrutiny: traditional EP would not have struck down the statute so court comes up with…
Intermediate: RIGOROUS scrutiny – sufficiently important state interests and closely tailored
Must also significantly abridge or burden
Reasoning:
Not closely tailored (other methods)
Overinclusive
Underinclusive: new W could make financial situation better, you could have new kids with the new wife anyway that you would have to support (this only makes them illegitimate)
No DP? If the court had used this it would have treaded heavily on state power to regulate. There are a lot of state regulations that would be challenged and states would not be able to show a compelling interest for all of them
Age regulations, polygamy bans, incest, etc…)
Fundamental Right to DIVORCE: since we have one to marry, we must have one to divorce too
What is Marriage?
 
Heterosexual Union for the purpose of sexual intimacy and procreation
 
Substantive Restrictions to Marriage = Capacity to Marry
1. NO GAY MARRIAGE
Opposite Sexes – some states statutorily define marriage this way
Sexually Intimate Union = homosexual intercourse is often illegal
Separation is defined as ceasing sexual relations
Used to be Marital Rape exceptions
2. NO POLYGAMY
3. CONSANGUINITY – INCEST
4. AGE 
5. CONSENT
Voluntary, without fraud or duress
 
Always ask these questions on the TEST when any substantive restriction comes up:
Is it constitutional under a Zablocki style challenge? Scrutiny?
Does it substantially burden the right to marry?
Does it block marriage for the THIRD person who is trying to marry?
What is the State Interest?
 
1. NO GAY MARRIAGE
 
Current Law Prohibits Same Sex Marriage in ALL STATES
Federal Constitution Challenges
Right to Marry
EP and DP
Right of Association
Right to Free Exercise of Religion
State Constitutional Challenges
Some states don’t statutorily define “marriage as between a man and woman”
State Constitutional Guarantees (can be better than federal)
State Equal Rights Amendments
State Protections of Right to PRIVACY and EP
 
Cases usually arise when gay couples seek and are denied a marriage license for the reason that they “LACK CAPACITY” to marry
 
Arguments AGAINST Same Sex Marriage
Traditional Definition as “two members of opposite sex”
PROCREATION – marriage is for propogation of species
Child rearing are a purpose – HEALTH and WELFARE of kis
Kids should have 2 gender role models
Immoral – Family Law is a STAT