Marriage
Introduction
o It’s not just divorce – property law, custody issues, fault, debt, paternity, grandparent rights (and those of other third parties)
History
o Family law is an expression of cultural norms
o The definition of legal marriage does not change as frequently, but custody, divorce, and separation change all the time
o Courts felt that if they got involved in family issues, then ALL family issues would be litigated
o Also notion of family as a mini government. Whatever the grandpa or dad says, goes.
o Government interference began when public opinion demanded help with abuse
o Termination of marriage has changed quite a bit – historically, the person who earned the money kept it (generally the male), and women generally got the kids.
Moore v. City of East Cleveland
o Grandma lived in house with son and two grandsons. The grandsons are cousins (one boy’s parents do not live in the
o Gov’t cites Belle Terre, but court finds this wrong because Belle Terre allowed family members to live together if bound by blood or marriage. Court says Belle Terre actually benefits family values
o Gov’t argues parking, overcrowding in schools. Court says no because other larger families could meet the statutory requirements.
o Key: Court finds freedom of personal choice regarding family issues is a liberty issued protected by liberty interests
o Court did not mention race/class issues here; however, many cultures have an extended definition of family. Also, many poorer communities require extended families to live together for financial reasons.
Problem 1-1
Association of Education Development v. Hayword
Probably wouldn’t work because the families are two separate entities.
Problem 1-3
This is probably more likely “family” as the group of people have common goals, etc.
Braschi v. Stahl Associates Co.
o Gay partners in rent control apartment
o Nothing in the definition of family in the statute limited this to
o RULE: We need to look at reality and not restrict definition of family to formal relationships. Have the functional approach test – looks at the totality of the person’s relationship
o Longevity of the relationship
o Whether household expenses are shared
o Intermingling of finances
o Whether they engage in family-type activities
o Whether they have formalized legal obligations toward one another
o Held themselves out to the community as family
o Regularly perform family functions
o Any other pattern of behavior showing evidence of an intention to create a long term emotionally committed relationship.
o NOTE: with above test, theoretically, a sexual relationship between parties should not matter, but every time this test has been applied to sex-less relationships, it has failed.
o Failed in inheritance and failed f
ried
o A voidable marriage can be ratified (fixed) or you can get a divorce to get it done.
o If it is a void marriage, you cannot ratify it.
Common Law marriage
o Couple lives together, think that they are married, act that they are married
In Re Estate of Hall – COMMON LAW MARRIAGE
o Alleged “common law” wife wants to become
o Had separate accounts, but female paid his bills, had his names on her life insurance, filed taxes as single, he told friends that he would never marry her
o Two elements of common law marriage:
o There must be a mutual agreement that they are married
o There must be cohabitation
o Can the marriage be proven by other things
o Shared accounts
o Listing of marriage
o Recognized status of the community
o All of these things need to be proven by clear and convincing evidence.
o If you are in one of the states that recognizes common law marriages, and you think you are married, then you are married
o If you are common law married, then you have to get a divorce to dissolve the marriage.
Only 10 states and DC recognize common law marriages. Those who were married
