Family Law
A. CH. 1 Cultural Changes and State Power to Regulate Marriage and Divorce
I. The traditional family: Family was viewed as a nuclear unit with a gender division of labor between
a husband and a wife. Wives are subordinate to husbands and their place is in the home as a
homemaker and mother. Wife was under the unity doctrine one with her husband and without consent
from her husband she couldn’t make a will, alienate real property, enter into contracts, sue or be sued,
or retain or control her own earnings or property.
a. Married Women’s Act: women competent to sue in her own name for injuries to herself and
could retain the proceeds of those actions. She could recover for injuries of loss of her capacity to perform household duties, as well as to earn money on the outside.
II. State and Federal Sources of Family Law:
a. Rose v. Rose (1890): “The whole subject of domestic relations and husband and wife, parent child, belongs to the laws of the States and not the laws of the United States.” Power based on the 10th Amendment’s proviso that “the powers not delegated to the United States, are reserved to the States respectively, or to the people.”
b. However, recent decisions by the Supreme Court have begun to encroach on that power of the states. By using the Due Process or Equal Protection Clauses of the 14th Amendment, and the 1st Amendment, the Court has expanded constitutional protection to abortion, marriage, living arrangements, and contraception.
III. State Control of Family Law:
a. Jackson v. Jackson (1804): The couple lived in NY, where divorce wasn’t allowed. The wife
went to Vermont for the sole purpose of getting a divorce. She can’t evade the NY state law by doing this. She is still domiciled in NY and can’t get domicile in VT distinct from her husband’s in NY.
IV. Protection of Marriage; Breach of Promise to Marry
a. Wightman v. Coates: (traditional approach)– When one of the parties to an engagement of
marriage wantonly and capriciously refuses to execute the contract of marriage, the injury
may be so serious as to justify a claim for damages. Here a woman was deserted and it was
thought that an abandoned female prospects in life may be materially affected and will mourn
for years. The delicacy of sex in this country gives the men an advantage over woman.
o Modern Approach- About 90% of the states have abolished the cause of action for breach of the promise to marry.
o Defenses to Action for Breach: Δ can argue fraudulent misrepresentation or concealment, insanity at time of engagement, or π was married at time of engagement or development of certain serious illnesses or physical conditions: States take measures to abolish promise to marry causes of action (Heart Balm Statutes)
o Seduction: The common law tort of seduction still exists in some jurisdictions. A Δ’s conduct must have consisted of such solicitations importunities, misrepresentations, knowingly false promises or artifices, including false promise to marry for the purpose of seduction, which lead plaintiff, a chaste unmarried woman to deviate her path of rectitude. Induced the woman to have sex. Thus action centered on fraud.
o Initially, the father was the one who recovered for damages for “loss of services”
V. The Basis of State Power to Regulate Marriage & Divorce
a. Marriage: The State’s Interest
· Definition of marriage: Marriage, as distinguished from the agreement to marry and form the act of becoming married, is the civil status of one man and one woman united for life, for the discharge, to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
· Uniform Marriage and Divorce Act §20 (1970): Marriage is a personal relationship between a man and a woman arising out of civil contract to which the consent of the parties is essential. A marriage licensed, solemnized, and registered as provided in this Act is valid in this State. A marriage may be contracted, maintained, invalidated, or dissolved only as provided by law.
b. Maynard v. Hill: other contracts may be modified, restricted, or enlarged, or
entirely released upon the consent of the parties. NOT SO W/Marriage. The relationship once
formed the law steps in and holds the parties to various obligations and liabilities. Mor
with women. Most jurisdictions today recognize that either spouse has a cause of action for loss of an impaired spouses’ consortium.
b. Alienation of affections claims: Husband had to prove a valid marriage, the defendant’s
wrongful conduct with the spouse, a loss of consortium, and a causal connection between the
defendants conduct and plaintiff’s loss. Putative damages were available if the defendant’s
conduct was malicious or had the ability to pay.
Abolition of heartbalm claims: Based on belief that the decision of a spouse to divorce is usually not solely attributable to a third party’s intervention.
a. Eliminated in most jurisdictions:
1. breach of contract to marry
2. alienation of affections
3. criminal conversation
b. Jurisdictions that retain such actions argue that causes of action are to protect love, society,
companionship, and comfort that form the foundation of a marriage – that of consortium.
Mediation in Divorce
Divorce mediation is instinctively appealing to many divorcing parties b/c it affords them the opportunity to exercise some control over the resolution of issues which are extremely private…..
Mediations of Domestic Relations cases? Mediation is not a good forum in these type of situations b/c there has to be a relative power balance between the two people.
During mediation, mediator is present along with the husband and wife. If there are lawyers, the lawyers are with their clients and there is more of having the parties being kept separate.
Lawyers tend to narrow the issues down to legally relevant issues.
Arbitration is becoming another option – arbitration is binding and cannot be appealed. In arbitration, you are choosing your own judge and you also craft your own procedure.
Counseling
