Family Law Outline

FAMILY LAW

DEAN ANDY COATS

Fall 2014

OU COLLEGE OF LAW

“Unprepared lawyers do more damage than crooked lawyers.”

MARRIAGE

· When, How Who—Valid marriage? Void or Voidable?

· Certain Presumptions out of Marriage in OK – Determine Whether Marriage is Valid

· Same-Sex Marriage?

· Fraud in Marriage? Intrinsic, extrinsic.

· Constitutional Issues of Marriage

· Out-of-State/Foreign Marriages & Divorces – Jurisdictional Requirements

Divorce (or Dissolution)

1. Divorce

2. Annulment (effect? Circumstances?)

3. Legal Separation (“divorce from bed and board”; ex: religious reasons. Do alimony? Property? Children? Still matter?)

· Do we have No-Fault divorces? Have to prove adultery? Abandonment?

· When divorce is filed: automatic injunction. Got to hold on to your stuff and don’t do anything. Goes in effect when other side is served and its filed. Court can adjust. Judge can do temporary. Appeals? (what does it do?) Dates are Important Regarding when Decrees become Effective.

· Court’s primary concern is care of the children, before the interests of either side.

Property

1. What property is in the marital estate? (All of these are governed by statute, Title 43). Separate or marital?

2. Values of property. (In OK: doesn’t have to be 50/50; has to be fair and equitable). Issues of Retirement plans. Issues of Academic Degrees (and working at home during)-property?

3. When can divide the property?

Agreements (the law favors these; better than a lawsuit)

1. Prenuptial agreement

2. Agreement b/w couples after they’re married

Support Alimony

1. What ability does the court have to award?

2. is it appropriate? What amount?

3. Can it be modified? Under what circumstances?

Final Exam

-Each issue stands out by itself. What happens here and there, and then why.

-Will be a series of questions with short answers, possible multiple choice.

CH. 1. MARRIAGE

Introduction

· Marriage is defined in Oklahoma as personal relation arising out of a civil Kx to which the consent of the parties legally competent of Kxing and entering into as necessary and the marriage relation shall only be entered into, maintained, or abrogated as provided by law.

· The law is partly based on Kx and partly based on status. Oklahoma follows the traditional standards on who may get married.

A. Restrictions on Marriage

1. The Traditional Restrictions: Bigamy

· Whitney: Void is void. Constitution prohibits bigamy. If its void, don’t need to file a divorce: it’s already void! But you probably should. Here, because they reunited in what was not a marriage did not affect the settlement agreement Kx they had entered into. Can’t give alimony, child support, but you can divide the property.

o “quasi-partnership”: the partners have a sensitive relationship. An equitable division candidate.

o Arnold dissenting: warns against fraud.

· Common Law Marriage: if parties to a bigamous marriage live together, and the original spouse dies, then they immediately have a common law marriage.

· Plural marriages are illegal in every state.

2. The Constitutional Question

· Zablocki: before a State can interfere with the marriage right, it has to be an important State interest and it has to further that State interest.

o Here, it was a method but there were other better methods. Was not critical to meeting State’s interest.

o Said it violated fundamental right of Due Process. Right of Privacy implicit in 14th Amendment.

o Remember lines in section III: RULE: “When a statutory classification significantly interferes with the exercise fundamental right, it cannot be upheld unless it is (1) supported by sufficiently important state interests and is (2) closely tailored to effectuate only those interests.” This is the standard for determining if a Statute interfering with marriage will be upheld.

o In OK, there are lots of ways to enforce child support payments: jail, revoke licenses, etc.

· Takeaway: family law structure is a State issue. Federal gov’t rarely gets involved unless Constitutional right involved.

3. Incest

· Catalano, Generally accepted rule: where a marriage is valid where it was performed, it is valid everywhere, but can be invalid if contrary to the strong policy of the domicile though valid where celebrated.

· Most courts in this country would likely come to this same conclusion: against strong Constitutional public policy.

o Issue of affinity (adopted or step): Oklahoma still considers that incestuous.

4. Age

· White, this case is a bit convoluted. marriage was underage, voidable, but not void.

· Voidable because of impediments of underage.

· When a marriage is voidable for non-age, and nobody comes in to make it unavoidable, once the impediment is removed, they become married. It’s voidable until they get old enough.

· “Even if they didn’t obey the statute age requirements, the marriage itself is not void unless the statute itself so makes it”

· Difference Between Void and Voidable

o Void is void on its face, requires no judicial action to establish its invalidity.

o Voidable: unless judicially annulled in timely fashion, it becomes valid union from its inception

o In OK, a marriage that violates the age laws becomes common law marriage if the parties continue their marriage after they’re of age.

5. Mental Capacity

· In Houser, A marriage Kx, like any Kx, has to have two parties who are mentally competent to enter into the Kx.

· Marriages are valid by consent: consent includes voluntariness and intelligence.

· In this case, it was VOID. Did not voluntarily agree to anything, did not know. Whereas voidable would be he knowingly lived though it was against the law.

· Increased “predatory unions” Virtually impossible for kids to challenge the property consequences of deathbed marriages. Only way to stop it is to annul a marriage after death by surviving spouse. Florida law newly gives heirs and others legal standing to challenge on the grounds of fraud.

6. Same-Sex

· Strict scrutiny of legislative classification only when it interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Otherwise, subject to rational basis.

o Transsexuals do not constitute a suspect class.

· Public policy is an easy defense for a court to defend/oppose certain actions. But it is hard to define. Ultimately, it was against Ohio’s public policy and the statute said a birth certificate could only be changed for error. An issue for the legislature to address.

· In Oklahoma: In O’Darling, tried to slip one by the judge about a foreign same sex marriage. Court has a power to vacate any order, but also has to give an opportunity for person to present evidence, and here, they vacated the order but did not give notice to the person.

· Trans name changes: Has to grant the name change unless judge finds it’s for illegal or fraudulent purpose, or material allegation in petition is false.

o Law does not require males be given traditionally male names, or females vice versa. Relevant issue in name change is not the DNA corresponds with the name preferred by the person.

o Name change for same sex? Can change your name for personal reasons, just not fraud.

· Same-sex: stuff is going on, litigation ongoing. SC will likely address it. Allegedly creates problems. Ex: separate tax returns in OK; joint tax returns for federal. Difficult subject with religious concerns.

· Final question: if you’re it must be in support of a compelling state interest and must be narrowly tailored to accomplish that interest.

B. Fraud and the Marriage Relationship

· Need substantial evidence that fraud was committed (never intended to fulfill marital duties); where fraud is so grievous tha