Family Law Spring 17 Abrams
I. Marriage, Family and Privacy in Contemporary America
A. The American Family Today
troxel v. granville (2000) (o’connor, J., plurality opinion)
the demographic changes of the past century make it difficult to speak of an average american family. the composition of families varies greatly from household to household.
II. Practicing Contemporary Family Law
A. The Status and Conditions of Family Law Practice
More than 90% of divorce cases settle
law tries to uphold marriages that appear valid
best to avoid court suits and legal proceedings in family law
Lawyers primary roles
advisor
advocate
negotiator
evaluator
B. Ethics in Contemporary Family Law Practice
Legally-unsophisticated clients
High stakes and high emotions
Beware of the notion that “any lawyer can do a divorce
C. The Relationship Between Ethics and Malpractice
D. Family Law Negotiation
III. Entering Marriage
A. Introduction
marriage presumptions
parties complied with marriage formalities
parties had capacity to marry
the latest of successive marriages is valid, and free of substantive defect
Tort law
breach of promise to marry (heart balm statutes)
alienation of affections
cheating
criminal conversation
seduction
father brings suit against dude that seduces his underage daughter
B. Marriage Formalities
Marriage act
Formal marriage reqs
licensure and solemnization (ceremony)
Does MO follow the majority rule concerning failure to secure a license ( or have a ceremony)? mo rev stat 451.040.1
what purposes do formal marriage reqs serve?
provide time for parties’ reflection
help enforce substantive reqs
help prevent problems of proof
help prevent fraud
protect weaker spouse and dependent children by assuring application of divorce laws
The law tries to uphold marriages that appear valid
best to avoid court suits and legal proceedings in family law
some states have marriage waiting periods, on the way out
Why regulate marriage
family stability, durability
cements a social relationship
tradition and heritage count
C. Common-Law Marriage and the Putative Spouse Doctrine
common law marriages contracted in mo are null and void
rule 1: state #2 will recognize a marriage lawfully created in state #1 if the marriage does not offend the
marshall case
de facto officer doctrine- if you think someone can perform a ceremony,but they’re a lying bastard, it still counts.
fraudulently induced marriage
evidentiary burden
beyond a reasonable doubt
clear and convincing evidence
preponderance of the evidence
IV. Nonmarital Couples
“holding out” at married today
joint tax returns
home deeds- real estate transfers
apartment leases
auto loans
cc applications
children’s birth certificates
rights of unmarried cohabitants-3 approaches
express and implied contracts and equitable remedies (e.g. california)
no recognition of rights of cohabitants (e.g. illinois)
rights must be based on express contract (e.g. new york)
cl marriage can only be dissolved by divorce. cohabitants can do whatevs
lee marvin case
divorce act does not apply
breach of express and implied (oral) contract
equitable relief
