Select Page

Family Law
University of Toledo School of Law
Knouse, Jessica

Family Law, Knouse, Spring 2014



o Benefits of marriage:

§ Health benefits, life insurance, survivor’s benefits (workers’ comp only applicable to married people), intestate succession, presumptive fatherhood, own property by the entireties.

§ Stability enhanced by symbolic commitment, enforced by law.

o Third party respect, societal expectations, approval of employers.

o Things you can do by contract without marriage:

o Own joint property, designate each other as medical decision makers, put each other in wills.


o Right to Privacy (aka liberty)

§ DP: no state shall deprive anyone of liberty w/out DP of law

§ Content of right: marriage, raising children, contraception, abortion, sexuality, et

§ Nature of right: bodily, marital, spatial, individual, decisional, etc.

§ 1st Amdnt: freedome of association (relational)

§ 3rd Amt: sptial

§ 4th Amd: sptial

§ 9th Amd (catchall)

o Griswold v Connecticut

§ Facts: Appellants were arrested/charged w/ giving information, instruction, and medical advice to married persons on means of preventing conception (STATUTE)

§ Found guilty as accessories (fined $100/each) and claim (ISSUE) that the accessory statute as applied violated their 14th Amendment rights

§ Statute: “any person who uses a drug/instrument for purpose of preventing contraception…” also theres an accessory statute which def. was convicted under

§ Griswold: I have a substantive DP right to privacy

§ I?: is the right to use contraception a fundamental right? YES

§ Held: gov. purpose to control/prevent activities constitutional subject to state regulations may NOT be achieved by means which sweep unnecessarily broadly and invade protected freedoms

§ Spatial privacy = bedroom

§ Specific guarantees in the Bill of Rights have penumbras of privacy , which certain un-enumerated rights are said to exist (i.e. 1st Am right to association, schooling, etc. not specifically listed in Am but assumed/said to exist as part of the freedoms associated in the Am.)

· Similar notions found within the 4th and 5th and 9th amendments

§ Present case concerns rel. in Zone of Privacy created by several fundamental CON guarantees

· The right of privacy in Marriage is sacred = cannot allow searches for contraceptives

· The same proves true for the doctors/physicians

§ Fundamental right of privacy in marriage = sacred

§ Summary: explicitly recognizes a Constitutional Right to privacy. Uses a spatial argument, using the marital bedroom argument. Therefore, the right to privacy applies in your home. They apply the right to privacy as a relational right? Attaches to the married couple themselves.

o Eisenstadt v. Baird – discriminating btwn married vs. unmarried = EPC violation (broader concept of privacy)

§ Facts: Baird convicted at bench trial in MA (1) for exhibiting contraceptive articles when delivering a speech at BU, (2) for giving a young woman a package of vaginal foam who was unmarried. MA statute says: giving away contraceptive materials to unmarried ppl (if youre married you can get contraception).

§ Issue: whether there is some ground of difference that rationally explains the different treatment accorded to married and unmarried persons under MA law?

§ Decision: Providing dissimilar treatment for married and unmarried people who are similarly situated violates the Equal Protection Clause = MA statute UnCon

· EP violation: gets rational basis review and not arbitrary (low standard)

· basically says you have to treat unmarried couples the same as married couples

· so this case rests on a decisional right of privacy

§ Reasoning: w/e right indiv. Has to access bc the rights must be the same for un/married alike

· State cannot outlaw distribution to unmarried but not married persons bc violated EP

§ Summary: Decided under Equal Protection – unmarried people were the classification, it got Rational Basis. Treats a married couple as an association of two individuals, creating an individual right, and a decisional right (the right to decide if they want to bear a child).

o Case Summary

§ Griswold à DP privacy rights require states to allow married couples to use contraception

· Privacy =

o Spatial protects the marital bedroom

o Relationship protects the married couples

· Eisenstadt =

o EP requires states to treat all indivs equally regarding access to contraception

o Privacy

§ Decisional – protects the decision to bear kids and

§ Individual – attaches to married and unmarried indivs

o Bowers — priacy and sexuality

§ Held: anti sodomy law is rationally related to states definition of morality which is a legit state interest

§ Sexuality – state had a legitimate interest in banning sodomy (RB review, DP Case)

o Romer — EP case

§ Ct. struck down legis aimed at homosexuals à EP violation

§ EPC case à RB w/ bite

§ animus is not legit state interest

o Casey: Const. protection for personal deicsions and autonomy to live life

o Lawrence v. Texas: liberation of privacy – modern right to privacy

§ Facts: Petitioners Lawrence and Garner were arrested and convicted after officers came to Lawrence’s house on reported weapons disturbance and found L and G engaging in a sexual act

§ TX statute made it a crime for persons of the same sex to engage in “deviate” sexual conduct w/ each other

§ Issue: whether the petitioners were free as adults to engage in private conduct in the exercise of their liberty under the DP clause of the 14th Amendment? – YES

§ Decision: Convictions reversed

§ Analysis: laws banning sodomy do NOT seem to have been enforced against consenting adults acting in private – State Interest was trying to protect young people from being “victimized” by homosexual “predators”

§ No fundamental DP right to define one’s own persona


o Standard of proof = CCE the

· NOTE: there is no such thing as CL divorce

· Different laws:

o The CLM will travel with you

o if marriage was valid in state it was entered à states will respect it even if their laws don’t recognize it

o if you live in a Non CLM state à then move to a CLM state à they will assumed you have a CLM

o if you live in a Non CLM state à you travel briefly to a state that recognizes CLM à and then you come back to the non CLM state…..

§ some states will say we’ll recognize it since theres no time requirement so long as you meet the 4 CLM elements.

§ Some other states say no — theres policy against recognizing CLM

o PUTATIVE SPOUSE DOCTRINE — informal marriage

§ Definition: An innocent participant who has duly solemnized a matrimonial union which is void b/c of some legal infirmity acquires the status of putative spouse

· Recognizes marriage of an individual who participated in a marriage ceremony in Good Faith, in the belief that a valid marriage took place, and in ignorance of an impediment making the marriage Void/Voidable

o Later Removal of the Impediment = the de facto marriage becomes a valid de jure union

· UMDA: Putative spouse acquires rights conferred upon a legal spouse…

o BUT: The rights of the Putative spouse do NOT supersede the rights of the Legal spouse

§ Elements of PS doctrine

· (i) at least 2 spouse has to have good faith belief that a valid marriage occurred but

· (ii) the marriage was actually either void or voidable (the 5 substantive elements)

§ if PS doctrine applies — you get the benefits of marriage

· Putative spousehood terminates upon a party’s loss of good faith belief that he or she is married

§ In re Estate of Vargas

· H lived a double life as husband and father to 2 separate families, neither of which knew of the other’s existence. Second wife was found to be a putative spouse

· Property interests are protected → court is to resort to equitable principles of property distribution

· PSD: a party to an invalid (void or voidable) marriage who has a GF belief that his or her marriage is valid

· I? is a spouse that acted in GF in an otherwise invalid marriage entitled to any remedy? YES

o an innocent “participant” who has duly solemnized a marriage which is void because of some legal infirmity acquires the status of a putative spouse.