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Family Law
Villanova University School of Law
Momjian, Albert

      I.            Entering Marriage
a.       Is a marriage a contract or a status?
                                                              i.      Status: State creates relationship
                                                            ii.      Contract: Parties create relationship
                                                          iii.      Maynard v. Hill
1.      FACTS: H. left W. without support to go to West Coast, promised to send for her later. W. never heard from her until she learned their marriage was dissolved and H. had remarried in OR.
2.      HELD: Marriage is a status too- State has power to regulate the relationship.
3.      In most states now, need to give due process notice of divorce
b.      Formalities of Marriage: What are the Statutory Requirements a State Expects Us to Have?
                                                              i.      Basic Formalities
1.      Waiting period, blood test, license, authorized officer presiding
2.      Some states have created courses to make it harder to get married- prevent hasty marriages
                                                            ii.      Nelson v. Marshall
1.      FACTS: Couple married without application for a marriage license and the groom died the following day.  Couple thought they could complete the paperwork after. 
2.      STANDARD: State may implement reasonable regulations that don’t interfere in a significant manner with decisions to enter marriage. 
3.      HELD: No valid marriage.
4.      Directory State Statutes: Excuses/forgiveness. Mandatory statutes: No excuses!
c.       Common Law Marriages
                                                              i.      Requirements – by clear and convincing evidence
1.      Present intent
2.      Agreement to enter into marriage
3.      Cohabitation
4.      Public assumption of marital duties
                                                            ii.      Crosson v. Crosson
1.      FACTS: Bruce and Barbara were married but divorced. After divorce, Bruce asked Barbara to come back and be his wife. Unknown to Barbara, Bruce married another woman. Barbara sued for divorce, claiming she was Bruce’s common law wife.
2.      HELD: Valid common law marriage. No impediment to remarriage. Wife didn’t remove wedding band. Parties filed taxes together.  Husband’s other relationships doesn’t make the marriage less valid.
d.      Putative Marriages
                                                              i.      Definition
1.      Marriage where one or both of the parties were ignorant of an impediment that made their marriage invalid. 
2.      Must be contracted with a good faith belief the marriage was valid
3.      Cohabitation not required.
                                                            ii.      Rebouche v. Anderson
1.      FACTS: Doris married Wheeler and divorced him (mother took care of divorce).  Doris married Ramsey, who allegedly said he’d get a divorce and he remarried.  Doris thought she was free to marry and married Rebouche.
2.      RULE: Must have an honest and reasonable belief that the marriage was still valid and no legal impediment existed.  Question of good faith is subjective and depends on external circumstances.
3.      HELD: Doris ≠ putative spouse. Previously was divorced and should have known she had to get a divorce before marrying Rebouche. Failed to contact Ramsey to determine whether she was divorced so no good faith.
e.       Marriage by Proxy
                                                              i.      Definition: Attempt to comply with statutory marriage requirements by designating a stand-in who appears for the absent prospective spouse
f.       Last-in-Time Marriage Presumption
                                                              i.      MAJORITY: In order to rebut the last-in-time marriage presumption, the prior spouse must come forward with documentary evidence that no annulment or divorce was entered in any jurisdiction where the parties resided or where they might have reasonably resided.
                                                            ii.      MINORITY: All a prior spouse has to do to rebut the presumption is offer evidence of a valid marriage and then the burden of proof shifts to the next spouse to demonstrate there was a divorce of the 1st marriage.
                                                          iii.      Hewitt v. Firestone Tire & Rubber Co.
1.      FACTS: John married Barbara. Couple was in TX, MD. John left Barbara and allegedly told her to draft the papers. John remarried. John died and Barbara filed for social security benefits.
2.      RULE: Last-in-time presumption- damages should be given to surviving spouse and children. 
3.      ANALYSIS: Contesting party must attempt to document the absence of divorce: holds the burden of showing no divorce was entered in jurisdictions where parties resided or where party reasonably could’ve obtained a divorce decree.
4.      HELD: Second wife= wife because 1st wife failed to rebut the presumption of the validity of John’s 2nd marriage.
   II.            State Regulation
a.       Zablocki v. Redhail
                                                              i.      FACTS: Paternity action instituted against Redhail, alleging he was the father of a girl born out of wedlock (non-custodial) and hadn’t made support payments. Child was public charge since birth.
                                                            ii.      RULE: WI statute: Requires non-custodial parents attempting to marry to obtain a court order before getting a marriage license.  Can only get it if submits proof of compliance with child support obligation and that child is not likely to become public charge.
                                                          iii.      ANALYSIS: People in affected class will never be able to obtain the necessary court order because they lack financial means- serious intrusion into freedom of choice- must be closely tailored: strict scrutiny
                                                          iv.      HELD: Violates 14th Amendment EP clause. Wisconsin could find other ways of addressing interest of child welfare.
                                                            v.      Concurr

rriage annulled in TX to remarry since it’s not prohibited there.
2.      ISSUE: If Shaddock’s marriage= sufficient basis for change of custody
3.      HELD: No statutes saying marriages celebrated in another state are void in Arkansas. No basis for change of custody.
f.       Age Restrictions
                                                              i.      Underlying policy: Statutory age restrictions are necessary to prevent minor, immature persons from entering into unstable marriages that are likely to fail.
                                                            ii.      Moe v. Dinkins
1.      FACTS: Petitioners with to marry but lack parental consent so can’t obtain marriage license.  Had a baby out of wedlock and want to marry to remove stigma of illegitimacy from their son.  Claims law deprives them of liberty under DP.
2.      Uses rational basis because of unique position of minors and marriage (Bellotti v. Baird- minors are vulnerable- unable to make critical decisions in a mature and informed manner)
3.      HELD: State-required consent is rationally related to state’s legitimate interest to protect children’s welfare in light of minors having lack of experience necessary to make important choices. Prohibition is only temporary.
g.      Mental and Physical Incapacity
                                                              i.      In general
1.      Marriage to someone mentally or physically incapacitated = voidable
2.      Mental incapacity test: Capacity to consent when marriage is solemnized= capacity to understand nature of marital K and understand responsibilities to marriage.
                                                            ii.      Geitner v. Townsend
1.      FACTS: Geitner diagnosed as a chronic paranoid schizophrenic.  First National Bank appted as Guardian and Geitner married woman.  Bank refused to provide funds for woman and initiated annulment action.
2.      ANALYSIS: Expert and lay witnesses who testified Geitner had adequate mental capacity and understanding of special nature of a contract to marriage.
3.      HELD: Marriage of a person incapable of contracting for want of understanding is voidable.
h.      Consent Requirements: Fraud
                                                              i.      Marriage by fraud= voidable
                                                            ii.      Must be material fraud (but for fraud, there would be no marriage)
Must affect the essentials of the marriage (affect possibility of normal marital cohabitation