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Family Law
University of North Carolina School of Law
Eichner, Maxine

Family Law
What does “family” mean?
Traditional family model- nuclear family
Functional model- as seen in Braschi & Moore v. East Cleveland. Don’t look at fictitious legal distinctions or definitions of family. Look at what is actually going on out in the world. If they’re acting like a family, then they’re a family.
Individual/Contractual rights model- people should be able to have whatever living arrangements they want to have. (Vallorosi)
Notes- Married couples with or without children make up less than half of all households.
1/3 are cohabitants, roommates – most are same-sex relationships and solo living
– In NC, 50% of kids are in single parent homes and over 60% of these are living at or below the poverty line.
Belle Torras
6 mentally-disabled adults
Unmarried couple with children
10 unrelated college students
2 men in same sex relationship
6 unrelated students
Stat. Type
Single-family zoning
Housing assistance
Single-family zoning
-Rent-controlled Apt.
State Def.
“other domestic bond”
State: blood, marriage, adoption
Fed: none
Traditional family unit or equivalent
“Family” not defined. 
State: 1 or more persons related by blood, adoption, marriage. 
No central authority figure
– Residents not self-sufficient
– Residents did not stay more than a year or so.
– Shared household chores, expenses.
– Had renewable leases and were staying for an undefined amount of time.
Constitutional Challenges to Zoning Ordinances that Define “Family”
Village of Belle Terre v. Boraas (U.S. Sup. Court – 1974)
– Village of Belle Terre had an ordinance that restricted land use to single family dwellings. “Family” was defined as “one or more persons related by blood, marriage or adoption, living and cooking together as a single housekeeping unit…” Additionally, up to 2 unmarried people living together in a single, housekeeping unit qualified as a family.
– Appellees were six, unrelated college students living together. They challenged the ordinance, claiming that, among other things, it limited the fundamental right to travel and that it expresses preferences for certain types of residents (i.e.- non-married people living together).
– The Court disagreed, holding that no fundamental rights were violated (looked at what fund. Rights had been recognized) and that the ordinance was “reasonable” and bore a rational relationship to a permissible state objective.” Also, the Court countered the argument that the ordinance singles out unmarried couples by pointing out that the ordinance actually counts unmarried couples as families. Finally, towns may use their police power for zoning purposes in order to create more pleasant environments for citizens. 
– Court did a rational basis analysis – Did the statute have a rational relationship to a reasonable state objective?
Moore v. City of East Cleveland (U.S. Sup. Court – 1977)
– East Cleveland had a zoning ordinance that prevented related people from living together if they were not members of a “single family.” The ordinance was used to prevent a woman, her son and 2 grandsons from living together.
– The Court struck down the ordinance, holding that its decisions have granted a Constitutional protection to the sanctity of family, and that this includes family living arrangements. After all, “the tradition of uncles, aunts, cousins and especially grandparents sharing a household along with parents…” is just as deserving of constitutional recognition as the “nuclear family” model. 
– The concurring opinion points out that the nuclear family is largely found in white suburbia. Minority households are much more likely to include extended family members.
This is really a functional analysis. The majority here is saying that you can’t tell members of the same family that they may not live together. This is the way things are. Either by choice or necessity, family members must live together. 
-Issues to keep in mind:
            – Capacity of the courts to deal with delicate relationship issues.
            – Role of contested notions of morality and how the law should handle families
– Judicial discretion- judges have been getting more and more power to make decisions
3 Big Requirements for Getting Married
1.) Must meet formal requirements (have intent/ capacity/ lack of fraud or duress).
2.) Must be an agreement to marry
3.) Must not be barred from marriage.
Uniform Marriage and Divorce Act
What do the various states require parties to do in order to get married?
– They must acquire a marriage license. This usually requires:
Proof of age.
-Medical exam. (They often must get a blood test to make sure that they don’t have V.D.)
-Sometimes there is a waiting period involved.
–          Ceremony is REQUIRED in states that don’t support common-law marriage
–          Only must-have for the ceremony is an appropriately qualified solemnizing official. Most states require this official to be an ordained minister. N.C. only requires that the ceremony be recognized by some religion. 
– Courts rarely invalidate marriages for failure to satisfy formal requirements. It seems as though, if you want to be married, you can be married. (e

ing thereto.” You just need to understand the nature of marriage and the responsibilities that it creates. (Minimal understandings of the responsibilities)
3.) Be Free of Fraud and Duress
Wolfe v. Wolfe (1979) – Fraud in marriage
Main point-  unlike a normal contract, not just any degree of fraud will invalidate a marriage. Rather, “a marriage contract can be voided only if the nature of the fraud itself affects the essentials of the marriage.”
What are the essentials of a marriage? – having children, passing down property used to be the only really acceptable ones. i.e. If a man is impotent and lies about it, that is an essential. If a women lies about her chasteness and is pregnant by another man, that’s an essential as well.
While we have moved away from this narrow view of the essentials and take more things into consideration, but we are not at a completely subjective standard. Courts won’t invalidate a marriage because you wanted to marry a rich person and it turns out that they lied and that they’re poor or that they wouldn’t have married you if they knew you were a democrat. As we see in this case, religion is a major consideration.
* Courts are very reluctant to invalidate a marriage on the basis of fraud.
è There are various public policy reasons for this. Society likes families and encourages them. Doesn’t want existing marriages to end.
– Common Law- had to be a threat of physical violence. (i.e. – real “shotgun” weddings)
Modern Standard- requirements have been toned down. Threat of physical violence is no longer necessary. – Now, a threat to expose very sensitive information may count as duress. Threats by family to turn in man to authorities for seducing their daughter if he doesn’t marry her don’t count as duress. Courts see this as just explaining to him the consequences of his actions.
Substantive Restrictions on Marriage- When is Marriage Barred?
1967 – Loving v. Virginia- found that heightened scrutiny was appropriate in case involving a racial classification regarding marriage (Miscegenation law). However, the question remained, would statutes restricting marriage on grounds other than race ? It wasn’t answered