Moskowitz FAMILY LAW Fall 2010
Part 1: State, Federal, and Constitutional Regulation of Marital Relationships
State and Federal Sources of family law:
Unity Doctrine:
When a woman married under the common law doctrine of Coverture (was a legal doctrine whereby, upon marriage, a woman’s legal rights were subsumed by those of her husband, she and her husband merged, becoming one person in the husband’s name). Therefore w/o the husband’s consent the wife could not make a will, alienate real property, enter into ks, sue or be sued, or retain control her own earnings and property. This all changed with the Married Women’s Acts.
Rose v. Rose:
The Supreme Court Stated: “the whole subject of domestic relations and husband and wife, parent and child, belongs to the laws of the States and not the laws of the United States.”
However, using the Equal Protection Clause and the Due Process Clauses of the Fourteenth and First Amendments, the Court has expanded constitutional protection to abortion, marriage, living arrangements, and contraception.
Parental Kidnapping and Protection Act:
Settles when states could not agree on which jurisdiction should decide an interstate custody dispute.
Child Support:
Congress has stepped in with national legislation that has a direct impact on how state courts reach support decisions.
State Control of Family Law:
Jackson v. Jackson (NY State Ct 1804):
Nancy Jackson married Archibald Jackson in 1800 in the state of New York. In 1803, Nancy traveled to Vermont where she sought a divorce. In her Vermont petition, she alleged that Archibald abused her, beat her, and threatened her life. Because of his temper she had to divorce him. The Vermont Ct granted the divorce and ordered Archibald to pay Nancy 1500 in alimony. Nancy then moved back to New York and asked the court if they would honor her Vermont divorce. The New York Court found her incapable of acquiring a domicile distinct from her husband who resided in Vermont and used the unity doctrine to reach this result, or “It may be laid down as a general principal, that whenever an act is done in fraudem legis (which means fraud in the law or void in law), it cannot be the basis of a suit in the courts of the country whose laws are attempted to be infringed.” From class: states determine the rules regarding family law for themselves.
Pg 7, Problem D: What social/political views regarding the family and the state are expressed in the doctrine?
1. Under the unity doctrine, a married couple are one, and a wife is domiciled wherever the husband is domiciled.
2. A married woman cannot make a contract.
3. The only basis for divorce is adultery, and that a divorce for “intolerable severe treatment” is insufficient.
4. The law regarding family law is viewed in different ways at different times.
From class:
Brief history of marriage and divorce. During the 1800s, a divorce could only be granted through a legislative act. It was said the grounds were to be set by the legislatures but implied by courts. In the 1900s there became a fault based system of divorce. One party was considered at “fault” for things like abandonment, physical cruelty, and other moral types of wrongs. In the 1960s and 1970s, the concept of fault based divorce was altered at it became no-fault divorce. This is when people started to get divorces for such things as irreconcilable differences and breakdowns.
Coontz Article: American Family Today:
Three Reasons for Family Privacy:
1. The right to privacy is integrally entwined with the rights and obligations of family members.
2. Second this Chapter introduces the central characters and debates throughout family law.
3. The lack of consensus that pervades family law.
The changing nature of marriage from 1960-1990 were not the result of any specific generation or political ideology. The end of the 1970s was marked by a flood of divorces and a small number of remarriages, and many alternatives to marriage. In the 1950s, women who were divorced remarried quickly, but by the 1990s only half of divorced women were married or living with partners 5 years later. Also, there was a large increase in the number of women waiting to be married in 1960 only 1 in 10 women between the age of 25 and 29 was unmarried while by the late 1990s 40% of women were unmarried in this age bracket. There was also an increase in the number of people who lived together without remarrying, this number grew 7 fold. One reason for this is that marriage was now not the obvious response to childbirth.
Daniel Cere’s Critique on this change:
1) Now marriage and cohabitation may be viewed as one. Also, when it comes to the wellbeing of children, cohabitation is much less stable and safe. 2) As with same sex marriages, they force the law to be neutral in terms of saying that children need their mothers. 3) Separation of marriage and state, this denies the state its interest in the institution, an institution that helps to sustain the liberal democracy. 4) Only a matter of time before challenges to the two person definition of marriage become prevalent.
Conjugal Model:
Marriage should be a sexual union between a husband and wife who promise they will have a single union of sexual fidelity, mutual caretaking, and the joint parenting of any children they may have.
Close Relationship Model:
Union of marriage is a private relationship between adults, if children arise from this union, they are not seen as intrinsically connected.
Changing Patterns of Non-martial childbearing in the United States:
1. Childbearing by unmarried women has resumed a steep climb since 2002.
2. Births to unmarried women totaled 1.7 million in 2007, 26% more than in 2002. 4 in 10 women are unmarried when they give birth.
3. Non-marital births are higher in Hispanic women followed by black. Rates for Non-Hispanic white and Asian or Pacific Islander women are much lower.
4. Most teenage pregnancies are non-marital, but 60% of birth to women 20-24 and nearly one-third of births to women 25-29 were non-marital in 2007.
5. Teenagers accounted for just 23% of nonmarital births in 2007, down steeply from 50% in 1970.
Basis of State Power to Regulate Marriage and Divorce:
Maynard v. Hill (US SC 1888)
In 1828 David Maynard and Lydia Maynard married in Vermont. They moved to Ohio and had two kids. Later, David left for Washington Territory where under a certain act of congress he received 640 acres of land. David promised he would send support for his wife and kids, but never did. On December 22nd 1852, the legislative assembly of the territory dissolved the bonds of matrimony between him and his wife. Later in 1853, David married Catherine Bashears and they lived together until his death.
Two issues are presented: Was the act of the legislative assembly dissolving the dissolving the marriage valid? And if it was valid, did the divorce defeat any rights of the wife to a portion of the donation claim?
The court reasoned that marriage is a contract and “loose morals and shameless conduct of the husband can leave no bearing on the question of the existence or absence of power in the Assembly to pass the act.” The Organic act extends to the legislative power of the Territory to all subjects of its legislation. Because of this, the act was passed divorcing the husband and wife, he had no vested interest in the land, and she could have no interest greater than his. A divorce ends all rights not previously vested. To entitle her to half of the property she must have continued to be his wife during his residence and cultivation of the land. From Class, at this point the US Supreme Court really does not consider itself a player in family law.
Pg 16, Problem E, The court distinguishes a marriage contract from a commercial contract. What are the most significant differences?
1. Marriage is more than a contract because the parties are unable to “modify, restrict, enlarge, or dissolve” the contract.
2. Marriage is also important to society.
From pg 9 in Xerox NCHS reports-shows the shifting dynamic of families today:
1. Childbearing by unmarried women has resumed a steep climb since 2002.
2. Births to unmarried women totaled 1,714643 in 2007, 26% more than in 2002. Nearly 4 in 10 US births were to unmarried women in their twenties and over, while declining or changing little for unmarried teenagers.
3. Non-marital births are highest for Hispanic white and Asian or Pacific Islander women are much lower.
4. Most births to teenagers (86% in 2007) are nonmarital, but 60% of births to women 20-24 and nearly one-third of births to women 25-29 were nonmarital in 2007.
5. Teenagers accounted for just 23% of nonmarital births in 2007, down steeply from 50% in 1970.
State v Snyder:
Amanda Belle S
than one wife.
Anthropologists suggest that the reasons for, or functions of polygamy include the following:
a) Increase the probability of children, particularly when a wife is barren or gives birth to female children only.
b) Increase the labor supply within a kinship network.
c) Deal with the “problem” of surplus women
d) Expand the range of a man’s alliances so he is able to maintain or acquire a position of leadership.
e) Perhaps provide sexual satisfaction to men, particularly in societies with lengthy postpartum sexual taboos.
Marriage: A Fundamental Right:
At one time this was known as a spurious issue and California was the first court to use the equal protection clause to strike these laws down.
Loving v. Virginia:
Mildred Jeter a woman of both mixed Native American and African ancestry married a Richard Loving, a white man, were married in Washington DC. When the two were residing in Virginia in 1958 they were indicted for violated Virginia’s anti-mesagenation laws. They pled guilty and a suit was brought to challenge the constitutionality of the law.
Does a statutory ban on marriages based solely on racial classifications violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment? The Court held that it does. The court reasoned that this statute was a race classification and was entitled to the most rigid scrutiny that was not necessary for the accomplishment of some state objective. The court also reasoned that marriage is a “basic civil right[] of man” and fundamental to our very existence of survival and a violation of this right would be subversive to the Fourteenth Amendment. There is a liberty interest in the right to get married. DP reads- “nor shall any state deprive any person of life, liberty, or property, without due process of law.
Page 89, Problem D, What level of scrutiny did the United States Supreme Court apply to the Virginia statute?
1. The court says it would apply the most rigid scrutiny, so strict scrutiny.
Zablocki v. Redhail:
Zablocki is a class action lawsuit challenging a Wisconsin statute that provided that any resident having a minor not in his custody that he is under an obligation to support by any court order or judgment may not marry without court approval. He brings a challenge that the constitutionality of Wisconsin Statute that provides that members of certain class of Wisconsin residents may not marry within the state without first obtaining a court order granting permission to marry. The Court held that this statute is unconstitutional. The court reasoned that it would make little sense to recognize a right of privacy with respect to other matters of family life, and not with respect to the decision to enter the relationship that is the foundation of the family in our society. Here, when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. The State asserts there were two interests to be served by the statute: 1) it provides the applicant the opportunity to receive counseling as to the necessity of satisfying prior support obligations? According to the legislative history, this court approval was supposed to be automatic. 2) Safeguarding the welfare of the out-of custody children. The right to restrict marriage as a collection device cannot be sufficient state interest. There are also numerous ways to fix this problem: wage assignments, civil contempt
