Family Law Outline

FAMILY LAW

MARRIAGE AND NON TRADITIONAL ALTERNATIVES

A. INTRODUCTION
· Introduction
o The Themes of Family and Family Law
§ Probably no other area of law is so replete with legal norms that communicate ideas about proper behavior but that have no direct sanctions.
§ If not in crisis all these years, the family has been in transition. It has been moving from an institutional to a companionship form
o Family Law And Cultural Norms
§ Family law traditionally reflected core cultural norms and has been more densely packed with rules that have no important function other than the affirmation of particular cultural values.
o Schneider- Moral Discourse and the Transformation of American Family Law
§ Four forces have shaped modern family law:
· Legal tradition of noninterference in family affairs,
· The ideology of liberal individualism,
· American society’s changing moral beliefs,
· The rise of “psychologic man”
§ Enforcement problems are ubiquitous and severe b/c:
· Much of what family law seeks to regulate occurs in private
· Persons enforced against is often specially able to injure the very person the law intervened to protect
· Some areas, the people the law wishes to regulate live in emotional settings and under psychological pressures which make them little susceptible to the laws persuasion or even coercion.
· Contrasting Norms
o Cultural norms change over time, but the also vary across nations and among subgroups w/I nations.
· Changes in Family Law
o The changes in family law over the past three decades has been dramatic.
o The Laws governing entry into marriage has not changed as much.
· Practicing matrimonial law is difficult:
o People come with high emotions
o Threats of violence
o Children are not parties in suit so supposed to keep interests of parties first.
· There is no common law divorce, common law marriage only in 12 states.
· Why is marriage and divorce state’s business?
o Economic reasons
§ Marriage is basic structure of human life, more stable(hard to argue today)
§ When marriage ends, usually one party that is more economically vulnerable.
§ Children are economically vulnerable and need to be protected.
§ Divorce- property settlements, maintenance, child support. Evens out weaker and stronger parties.
o Way to Encourage Procreation
§ Weak argument b/c people who have no interest in children or sterile can be married.
o Physical, Emotional, and Physiological well being of children.
§ If traditional nuclear family is more stable, it is b/c law doesn’t allow other types of families to be more stable.
o Social and moral Norms
B. MARRIAGE AND CHANGING GENDER ROLES
· Introduction
o One of the major cultural changes of the 2nd half of 20th century was the movement of women into the paid labor force. Did that change the roles of men and women within marriage?
· Mom’s Market Value:
o Stay-at-home mom’s annual salary would be about $35,000 a year
o Child care, transportation, errands, cleaning, cooking, bill pay, misc.
· Hochschild- the Second Shift (1989)
o There is no more time in the day, but more to get done, and mainly women are the ones who absorb this “speed-up”.
o Women usually take care of children who need things immediately, while men take care of household repairs, which can usually wait. Men thus have more control over when they make their contributions then women do.
o Women more often juggle three spheres- job, children, housework. Men usually only juggle job and children.
o Men and women have different things at stake in recasting of gender relations.
o Trying to solve the work-family problem
§ The housewife pays a cost by remaining outside the mainstream of social life. The career woman pays cost by entering a clockwork of careers that permits little time or emotional energy to raise a family.
§ One reason half the professionals aren’t women is because men don’t share in the raising of their children and caring of their homes.
o Mommy-Track- allows moms to opt for a less demanding work schedule, freeing them to spend more time w/ children while still continuing (at a slower pace) to advance in their career. This places women permanently in a second-class relatively low paid “mommy-track”.
· Today- Equitable Distribution
o Ally property is divided equally, so no need for gender based alimony.
C. ENTERING MARRIAGE
· Formal Requirements
o General
§ Formal requirements are not meant to be tough, no need to hire a lawyer.
§ Failure to adhere to formal requirements won’t invalidate marriage.
§ Two major formal requirements:
· License (451.040)
o Designed to be used to determine of two parties can be married.
o Doesn’t filter out much, unless obvious violation
o MO doesn’t require blood test.
o Most states have a waiting period before solemnization (MO is 3 days). Judge can waive for good cause
· Solemnized
o Must go through marriage ceremony.
o .100 – must be held by clergy or judges, .110- solemnizes must sign certificate.
o Licensure and Solemnization
§ Carabetta v. Carabetta (CN 1980)- requirements of marriage
· Facts:
o Husband tried to claim that since license was never had, even though ceremony and held out as married for years, that the marriage was void.
· Issue: Whether despite solemnization according to religious ceremony, a marriage is void where there has been noncompliance w/ statutory requirement of a marriage license? NO.
· Holding:
o Two kinds of requirements for a legally valid marriage:
§ Substantive requirements
· Incest, polygamy, same sex, age requirements
§ Formalities prescribed by state (license & solemnization)
o The legislature’s failure to characterize as void a marriage properly celebrated w/o a license means that such marriage is not invalid.
o Most such cases arise long after the parties have a