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Family Law
University of North Carolina School of Law
Lau, Holning S.

Family Law Outline (Lau) – Fall 2015
I. What Is a Family?
·         “Welcoming Love at an Older Age, but Not Necessarily Marriage” by Stanley Luxenberg (in binder)
o   Young unmarried couples typically have less education and lower income than their married peers.
o   Many older couples remain single because of financial issues, protecting inheritances of their children, families losing student aid, provisions that impose higher taxes on married couples, Social Security reasons, and VA benefits and military perks.
The (Contested) Functions of Family Law
·         “Love, Marriage, and the Baby Carriage: Revisiting the Channeling Function of Family Law” by Linda McClain (in binder)
o   Five Functions of Family Law
§  1. Protective: protect citizens against harms done by other citizens
·         State’s interest in protecting spouses and children from abuse and of fostering children’s best interests
·         Financial harm, domestic abuse, etc.
·         Financial security for the partner who is likely to sacrifice in order to raise children
§  2. Facilitative: help people organize their lives and affairs in the ways they prefer
·         Entering and enforcing contracts, giving legal effect to people’s private arrangements
§  3. Arbitral: resolve disputes
·         Divorce courts primarily adjudicate conflicting claims to marital property, alimony, and child custody
·         Makes it more difficult for families to be divided
§  4. Expressive: allows society to speak about their ideals and alters the behavior of people in society
·         Privileges families
§  5. Channeling: the law creates or (more often) supports social institutions which are thought to serve desirable ends (marriage and parenthood)
II. Intro. To Con. Law Concerning the Family
·         Evolution of the Supreme Court’s Right to Privacy: Development of the Supreme Court’s privacy doctrine; controversies that sometimes pit family members against each other; most divisive legal issues
o   Liberty of parents/ guardians to direct the upbringing and education of their children – Pierce v. Society of Sisters p. 17 – about statute requiring children to go to public school (no test given in this case)
§  Meyer v. Nebraska p. 16: statute prohibited teach languages other than English, except to those who completed 8th grade (no test given in this case either)
§  HYPO: When parents have a legal dispute with a non-related member (person you cohabited with), who raised the child… the legal (biological) parent will cite these cases.
o   Activities occurring in the home between married people are private, and there is a right to privacy which is found in the penumbra of enumerated rights (1st, 3rd, 4th, 5th Amendments) – must have a compelling interest to infringe (so law prohibiting the use of contraceptives is invalidated – Griswold v. Connecticut p. 2)
§  Legal test from Griswold: “The governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” – emphasis on married people
o   Right to privacy includes an individual’s decision-making autonomy/ freedom from interference from government. – Eisenstadt v. Baird p. 12 – statute that makes it a felony to give contraception if not a doctor, but only to non-married people – Equal Protection Clause was violated here, because access to contraceptives should be the same for married people and single people.
§  You can’t treat single people differently without strict scrutiny, because there’s a fundamental right here.
§  Privacy changes from in the home to individual autonomy.
§  HYPO: Couple that cohabits for long time, acts like married couple… girlfriend is in hospital, boyfriend isn’t granted time off, because the FMLA (Family Medical Leave Act) only applies to Spouses.  They want to use Eisenstadt.  Is there a fundamental right?  Is heightened scrutiny used? 
·         RACE: Strict scrutiny
·         GENDER: intermediate
·         EISENSTADT: rational basis review for married/ unmarried couples
o   No abortion law on this exam.
o   Right to privacy includes consensual intimate conduct between adults in their homes. – Lawrence v. Texas p. 59 – criminal statute prohibiting sodomy is invalidated, because the only state interest is to oppress an unpopular group.  Griswold established a right to privacy, and Eisenstadt extended the right to unmarried people.  (no test/ standard of review given in this case)
§  HYPO: unmarried, straight couple living together 10 years.  Woman is a gov’t employee (911 dispatcher).  Her job isn’t at-will; they need a reason to dismiss her.  Supervisor fires her, because she is cohabiting with her boyfriend; and the state has a law against cohabiting.  Woman, P, says the law is unconstitutional because of Lawrence.  We would argue that we want heightened scrutiny.  (Based on a real NC case, tried in the 2000s)
·         These old statutes don’t necessarily get people arrested, but they can have an effect in court- esp. in family law cases.
·         This statute can’t even pass rational basis review.
·         State would defend the anti-cohabitation statute by arguing: We want lowest hurdle (rational basis), because there’s no fundamental right here according to legal history/ precedent.  Marriage is a fundamental right and so is having a child, but living together is not.
·         State has an interest in channeling people into marriage.
·         If rational basis is chosen as the standard of review, then the cohabitants will argue: moral interest- not a state interest.  There are other ways to channel people into marriage. 
·         State would argue back: deciding line between married and unmarried couples makes administrative sense (so people can’t abuse the system)
§  HYPO: prostitution sting: facilitates extra-marital affairs.  People want to decriminalize it for the sex workers.
·         Prosecutors would argue SAFETY: diseases, violence associated w/ prostitution, correlation w/ other illegal activity, decriminalizing prostitution makes it harder to control human trafficking, other tangible harms (make it a more legit. State interest th

ntial impact on the parties or their children
·         HYPO: Attorney marries an opera singer.  At the time of the marriage, attorney makes more money, but the opera singer’s career was taking off and had potential to make more than him.  5 years after wedding, opera singer gets nodes, can’t sing anymore.  Next 10 years, she’s a homemaker.  She files for divorce and wants spousal support.  She hopes that her jurisdiction is closer to Geyer (special contracts).  It would be unreasonable to limit her spousal support after she suffered this disease and then devoted her life to her family.  Under the ALI, she’d have an even stronger case.
·         Waivers of child support are never strictly binding for public policy reasons.  The contract would be unenforceable.  Public policy dictates that c/s is in the best interest of the child.
·         HYPO: Barry Bonds marries Susann after she emigrates from Sweden.  They’re both 23 y/o.  Sun is a waitress/ planning a career as a make up artist for the rich and famous.  Barry makes $160k.  They sign a prenups the day before the wedding.  Barry’s lawyer tells Sun to retain counsel; she didn’t.   The lawyer reads the agreement to her, explaining that she will be waiving her community property rights.  After 6 years, Barry petitions for dissolution in CA.  He’s now making $8 mil/ year.  Sun has custody of 2 children, gets $20k/month for c/s and $10k/month for spousal support for 4 years.  Sun argues prenups wasn’t voluntary, language barrier, though the agreement only pertained to property owned prior to the marriage.
o   Voluntariness: not a good argument; In Re Shanks defines duress narrowly
o   Unconscionability: 1. Substantive: not a good argument. 2. Procedural: probably the best argument.  Did Sun really have the opportunity to seek counsel 1 day before the wedding and new to the US and did she even have money to pay for an attorney?
o   Disclosure: we don’t have enough facts for this
o   This case can only be decided by considering a totality of the circumstances.
·         Should prenups be enforced like regular contracts or w/ a more paternalistic view (special contracts)?
o   LIKE regular:
§  All contractual relationships are dynamic and circumstances are constantly changing.
§  If they’re all treated the same, it will lead to more consistent results form courts.
o   LIKE special:
§  Most people don’t consider every single thing that could happen.  The nature of marriage is that things change constantly; it’s not foreseeable.