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Family Law
University of Minnesota Law School
Younger, Judith T.



Spring 2011

I Courtship and Marriage

A. The Marriage Contract

Ø Is marriage Contract or Status?

v More than a mere contract: need mutual consent, but can’t be modified

B. Premarital Controversies

Ø Breach of Promise to Marry:

v Rivkin v. Postal:

1. Only a few jurisdiction recognize, but often with limitation

2. Tenn:

Ø either signed, written evidence of the promise or contract, or testimony of at least two disinterested witness.

Ø Consider parties’ age and experience to calculate damages

v Damages: may recover monetary and social value of marrigare (expectation damages), expenses incurred in preparation for the marriage (reliance damage),

1. Damages for mental anguish may

2. Punitive damage sometimes

v Seduction:

1. Tort but usually reformulate as action for intentional misrepresentation.

Ø Gifts in contemplation of Marriage:

v Fowler v. Perry:

1. Absolute v. conditional gift:

Ø Donor intend to make a gift

Ø Gift is completed with nothing left undone

Ø Property is delivered and accepted

Ø Gift is immediate and absolute

v Marriage is implied condition of the transfer of title to the ring

2. Majority adopted “fault-based”

Ø Donor entitled to return only if the engagement was broken by mutual agreement or unjustifiably by the done

3. Minority: “no-fault” Modern trend

4. Held: no-fault is more persuasive.

v Theory of recovery:

1. Nature of the gift, surrounding circumstances, and cause of the broken engagement

2. Fraud and unjust enrichment

C. Premarital Contracts

Ø Introduction: For a contract to be valid, it must be fair, equitable, and reasonable in view of all of the surrounding facts and circumstances

v Execution:

1. Voluntary: free of undue duress and undue influence

Ø Duress:

v One party issues a wrongful or unlawful threat, and

a. Threat of refusal to marry is not wrongful because such a threat should put the potential spouse on notice that the agreement was of a serious nature and should be dealt with in a serious manner.

v The other party had no reasonable alternative to entering the contract

a. Reasonable alternative of cancelling the wedding in the face of such a threat.

2. Unconscionability: protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.

Ø Procedural fairness: advantaged party’s exploitation of the disadvantaged party’s lack of understanding or unequal bargaining power

v Opportunity to seek independent counsel

a. Most jurisdiction: lack of representation alone is not sufficient ot void

b. Some jurisdiction such as Ca: by independent legal counsel or after being advised, expressly waived in separate writing

v Relative sophistication of the parties in legal and financial matters

a. College graduation, was previously divorced, and court reporter and paralegal

v Temporal proximity between the introduction of the agreement and the wedding

a. Presentation of the agreement on the eve of wedding or pregnancy of the prospective bride

b. Discussed the necessity of contract several times months before the marriage

v Full and fair disclosure:

a. No fair and reasonable disclosure, voluntary waiver of such disclosure, and the challenging party did not have, or should have knowledge of the other party’s property and financial obligations.

b. Majority jurisdiction consider the relationship is confidential, that is not an arm’s length transaction.

c. Parties’ respective sophistication and experience, respective worth, age, intelligence, and literacy, prior family ties or commitments, duration of relationship before the contract.

v The use of highly technical or confusing language or fine print

v The use of fraudulent or deceptive practices

Ø Substantive fairness:

v Shank:

a. Agreement typically financially one-sided

b. provision consistent with the financial condition of the parties at the time of execution.

c. Get potential benefits under the agreement

v Absence of meaningful choice due to one-side provision, with terms so oppressive that no reasonable person would make them and no fair and honest person would accept them.

v Enforcement: some jurisdiction will second look whether the agreement is conscionable at the time of divorce.

1. If circumstances changed during the course of marriage would leave contesting spouse without sufficient property, maintenance or appropriate employment to support

Ø Spouse’s subsequent disability or ill health

Ø Element of surprise: children

v Child custody and support:

1. General rule: contract will not restrict judicial discretion because state’s concern with child welfare.

2. Absent extraordinary circumstances, provision eliminating child support is void as against public policy

v Spouse support:

1. Much of the common law policy barring spousal waiver of support has disappeared.

2. In 29 jurisdictions, premarital waivers of spousal support are authorized by statutes that adopt UPAA

Ø Iowa, waiver of spousal support is not binding

v Shank: second marriage, advise to get a iwoa attorney to review

Ø Burden of proof: burden on challenging spouse in the usual dispute. Statute in some jurisdiction may have altered where the burden is placed.

Ø Jurisdictions Applying strict contract principles:

v Penn: Simeone v. Simeone

1. Recognize the equal status of men and women in our society and paternalistic presumptions and protections that arose to shelther women from the inferiorities and incapacities, which they are perceived as having in earlier times, have appropriately been discarded.

2. Absent fraud, misrepresentation, or duress, bound by the terms of agreements

3. Review of substantive fairness severely undermined the functioning and reliability of a contract and was not a proper subject for judicial inquiry.

4. Future events are reasonably foreseeable.

5. Full and fair disclosure, no need exact.

D. Constitutional Right to Marry

Ø Loving v. Va

v restricting the freedom to marry solely because of racial classifications violated the central meaning of the Equal Protection Clause and deprived appellants of liberty without due process of law in violation of the Due Process Clause of U.S. Const. amend. XIV.

v Marriage is one of the “basic civil rights of man,” fundamental to our existence and survival.

Ø Zablocki v. Redhail

v Wisconsin may not marry without obtaining a court order granting permission to marry. Can’t grant unless submits proof of compliance with the support obligation and demonstrates that children

l Con: Reynolds still good law

Ø Due process:

o Argue: Lawrence broad to shield the type of behavior he engaged.

o Here involves marriage and a minor

· State’s ability to regulate marriage: sexual (private) v. marriage (public and private)

· Equal protection: punish the behavior instead of motivation (not mention the religion)

Ø Age:

v Requirement of parental consent is becoming less important, but was upheld against con challenge on the basis of state’s important interest in preventing unstable marriage among those lacking capacity to act in their own best interest.

v Kirkpatrick v. Eighth Judicial Dist. Court

1. NV: under 16 is not permitted unless legitimizes a out of wedlock child or the minor is pregnant, if consent of one parent and judicial authorization.

2. States have the right and power to establish reasonable limitations on the right to marry in order to protect the safety, health, morals, and general welfare of society.

3. Father has fundamental liberty interest in the care, custody, and management of children, but the right is not absolute. State also has interest in the welfare of children

4. The statute provided a safeguard against an erroneous marriage decision by the minor and the consenting parent, by giving the district court the discretion to withhold authorization if it found that there were no extraordinary circumstances and/or the proposed marriage was not in the minor’s best interest.

5. The father lost his right to exercise legal control over his daughter during her minority. He still had the other legal and social attributes of parenthood.

6. The state had an interest in fostering appropriate marriages and tailoring its statutes in such a way as to take into account the individual variations in maturity, rather than just setting an arbitrary rule of age. The father had no standing to annul his daughter’s marriage.

Ø Fraud and Duress:

v Blair v. Blair

1. Fraud: a representation by wife, falsity, materiality, wife’s knowledge of its falsity or ignorance of its truth, wife’s intent that representation be acted upon by Husband, Husband’s ignorance of the falsity of the representation, Husband’s reliance on the truth of the representation, Husband’s right to rely on the representation, and sustained consequent and proximate injury.

2. Sufficient evidence that marry regardless of the representation.

v Fraud vitiates consent

1. Public policy in favor of preserving marriage whenever possible

Ø Many courts apply strict test for fraud, requiring “essential” misrepresentation

v Ability and willingness to engage in sexual relations and childbearing.

Ø Some states require only that fraud be material.

Ø Void v. Voidable