FAMILY LAW
COATS
FALL 2013
UNIT I: MARRIAGE
CLASS: MARRIAGE
1. Marriage: a personal relation arising out of a civil Kx b/t 2 legally competent and consenting adults.
a. 1st- makes sure there is a valid marriage. 2nd- what type of marriage
2. Conflicts of Law
a. Validity of a marriage will be determined by local law of the state, which w/ respect to the particular issue, has most significant relationship to the spouses and marriage
b. A marriage which satisfied the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the MSR to the spouses and the marriage at the time of the marriage
3. When someone dies there are 2 actions: 1)survival action 2) wrongful death actions
RESTRICTIONS ON WHO CAN MARRY
1. Bigamy- VOID
a. All states prohibit bigamy and restrict ppl to 1 spouse at a time. (also prohibited by OK const)
b. If parties to a bigamous marriage continue to live together as H&W following removal of the impediment through death/divorce it blossoms into a CL marriage the date the impediment is removed
c. Criminally proscribed in every state- up to 5 years in jai. Person who marries could go to jail for 1-5 years and pay 500$.
2. Incest- VOID
a. All states prohibit marriage b/t: bro & sis, parent & child, and aunt & nephew. A few states allow b/t uncle and niece when allowed by the religion of the contracting parties
b. 20 states (DC) allow 1st cousins to marry. OK doesn’t recognize, but will if the cousins are married in a state that allows it.
c. Relationship by Affinity(step children, etc)à incest criminal law protects nuclear family
3. Age – VOIDABLE
a. OK age for marriage is 18.
b. 16-18- can be married w/parental(or guardian) consent (application for marriage license must be on file for 72 hours before it can be issued).
c. Under 16- expressly prohibited form marrying. Exception for judicially authorized marriages in settlement of suits for seduction or paternity or when the unmarried minor is pregnant. (power never used in OK)
d. OK has one of the highest teen marriage rates in the country
e. When the underage couple continues to cohabit as H&W after obtaing legal age they have a CL marriage
f. Death doesn’t void the marriage
4. Mental Capacity-VOIDABLE
a. Persons who do not have the mental capacity to enter into a Kx are incapable of entering into a marriage relationship.
b. Family can appoint a guardian/representative of mentally incompetent person
c. Cohabitation after the incapacity ceases is a defense to the annulment action and the parties will be deemed to have a CL marriage from the time the incapacity ceases..
d. Problem of predatory unions– Most states inheritance rights of widows trump any estate plan. Only way to fix it is to annul marriage after death.
i. Some states are giving a loophole to heirs to challenge any marriage even after death
ii. *families need to supervise workers in their home.
iii. Can create a defense by setting up an irrevocable trust
5. Same Sex- VOID
a. OK requires a married couple to be of opposite sexes.
b. Different ways courts determine gender
i. test chromosomes, have a doctor examine you (genitalia), what you are when u are born (TX, FL, OH, KS, IL) drivers license
c. 12 states recognize marriages b/t couples of same sex and 7 recognize domestic partnerships/civil unions
i. Same Sex marriages valid in international countries (Nepal, S.Africa..)
ii. Private restraints on marriages in wills/kxs have been made illegal in may states
iii. Breach of promise actions (force ppl into unwanted matrimony) are almost extinct
d. Civil Union/Domestic partnership- alternative modelàhave all the rights and responsibilities of married couples.
i. available in: DE, IL, HI, NJ, NV, CA, OR. (CA can’t file joint tax return)
ii. Con:No Ct. alimony, visit in hospital, living together but not a spouse
e. Recognizing marriages from other states
i. Forum can apply its own law rather than the law of another state, provided it has a significant contact
ii. OK passed little DOMA- (still in effect)- doesn’t recognize marriages from other states
iii. Domestic partnerships could be recognized b/c not marriages.
iv. Same sex couple validly married in 1 state, able to divorce in OK? WY said yes for limited purpose of obtaining a divorce
f. If you want to change your name you canà very limited court involvement except if it deals with illegality or fraud
g. Interstate movement of same sex couples:
i. (1)couples who go to another state to marry when they are prohibited from doing so by the law of their domicle.- very unlikely the state of their domicile which does not recognize will recognize
ii. (2) Validly married same sex couples who move-
iii. (3)- transitory marriages- no case law
iv. (4)- outsider marriages- same sex couples who have never entered state that prohibit- ex. Inheritance
v. (5) Use adoption analogy—law where married valid but apply law where they are for future judgments
6. Windsor/DOMA 133 S.Ct. 2675
a. 5-4 decision: § 3 of DOMA was unconstitutional.
b. Bipartisan Legal Advisory Group (BLAG) intervened. P and Intervenor fighting against each other
c. §2 DOMA- states don’t have to recognize same sex marriages of other states
d. § 3 DOMA: marriage for all fed purposes means marriage b/t a man and woman
e. Dissentà says DOMA seeks to harm the very class NY seeks to protect
f. ** Anywhere a same sex marriage is lawful, clearly entitled to any fed benefits a married couple has.
g. ** ONLY fed benefits for ppl married in states that recognize same sex marriages
h. OK- don’t recognize same sex marriages for any purposes. In a state does not recognize same sex marriages, will they be able to get federal benefits?
i. Traditionally marriage rights-states, but this decision invaded states rights
j. IRS will recognize same sex marriages. Federal gov’t is implementing decision. Doesn’t make marriages valid in states where they aren’t but couples in those states(OK) will recognize the federal benefits of marriage.
7. Void Marriage
a. Who can attack: may be attacked by any person at any time the question of marriage becomes an issue in the case (after death of parties)
b. Doesn’t require ct. to declare void, action can be brought through annulment., or divorce case as a procedure to declare void.
i. Annulment- may help finality in wealthy people
ii. Divorce ct. can’t order alimony or divide marital property.
iii. Bigamous/incest/same sex—quasi partnership- partnership law for prop division
c. Can’t turn into a valid marriage like a voidable marriage can
8. Voidable Marriage
a. person has standing to bring case Only persons married can chargeà raise if someone else brings action
b.
erty
Application of Harvey- same sex
· Steven Harvey wants to change name to Christie Harvey.
· The petition should be granted unless the court or judge finds the change is sought for an illegal or fraudulent purpose, or that a material allegation in the petition is false.
o Harvey contends there is no fraud in identifying oneself by a traditionally male or female name while having DNA of the other sex.
· Nothing in this application that indicated any illegality/fraud/injury
FRAUD AND THE MARRIAGE RELATIONSHIP
1. SCOOK has authorized annulments for all cases involving void and voidable marriages including fraud
2. Burden of Proof when challenging a marriage for fraud- must be C&C evidence.
3. Level of Fraud has to go to essence of the marital relationship in order to be annulled.
d. Essence of the marriage: Evaluation of whether a fraud goes to the essence of the marriage may proceed either in terms of:
i. (1) the special nature of the marriage (having kids used to be an essential element of marriage) misrep of wealth can’t be basis of annulment.
ii. (2) defrauded party’s perception in terms of a reliance test (would he/she have entered into the marriage Kx absent fraud?)
e. Misreps that go to the essence of a marital relationship
i. 1) concealing 1 party had syphilis; 2)concealing husband couldn’t have sex; 3)concealing one party married other for green card
i. Green card fraud: if an alien marries a citizen of US for only purpose of entering US, and w/o intention of assuming duties and responsibilities of a marriage
b. Misreps NOT to the essence
i. 1)misrep of affection; 2)concealing lesbian activities; 3)concealing inheriting prop. Of spouse was purpose for murder; 4)concealing misdemeanor narcotics
4. Fraudulent Inducement to marry must allege all the elements of CL fraud:
a. 1) a False material representation , 2)made as a positive assertion, which is shown to be either false, or made recklessly w/knowledge of the truth, 3) with the intention it be acted upon, 4) and which is relied upon to his/her detriment
5. Pregnancy- 2 categories
a. 1)false claim of pregnancy is not to essence
b. 2) true claim of existing preg and false rep prospective spouse is baby dad- of essence
Seirafi-Pou v. Bag- fraudulent marriage- Green Card
· She was able to appeal b/c she could obtain a more favorable judgment
· Fraud can mitigate a marriage Kx if you can prove it by C&C evidence and it goes to the essence of the marriage
Tice v, Tice- Fraud
· 1) was marriage Fraudulently induced? 2) Does it have to be in writing
· The fraudulent representation need not be the sole inducement which causes a party to take the action from which the injury ensued. Key is that w/o representation the party would not have actedà person relying on the fact was deceived.
Miller v. Miller– fraud
· Issues: 1) Fraudulently induced to marry, 2) IIED
