MARRIAGE AND ITS ALTERNATIVES
INTRODUCTION
SOME TERMS
I. Grounds for Divorce
A. REMEMBER: Fault basis in 38 states
B. BUT REMEMBER: No fault basis in all states (i.e., irreconcilable differences)
II. Custody
A. DEF: “Temporary Custody Agreement” à agreement during pendency of divorce
1. ROL: Whoever gets temporary custody usually gets final custody
2. REMEMBER: Temporary custody is the whole game
3. POLICY: Degree to which the law trying to create stability in child’s life that has become unstable
B. DEF: “Physical Custody” à authority to chose where child lives
C. DEF: “Legal Custody” à authority to direct upbringing of the child
III. Long-Term Marriages
A. In some states (CA), when couples married for 10 years, there is a presumption of long-term marriage
B. When this presumption is triggered, there is generally a 50/50 split
IV. Time: When to Classify the Property
A. ROL: Generally, date of separation cuts off bleeding (beginning of marriage to date of separation) à what you have at that moment is frozen
B. BUT NOTE: Sometimes people b/come so wealthy during pendency of divorce; that property also divided
V. Prenuptial Agreements
A. TEST: Look for traditional contract defenses and sufficient consideration
B. ROL: Agreement before birth of child that 1 parent cares for child upon divorce void as against public policy
STATE INTERESTS IN REGULATING WHO IS MARRIED
I. Granting a Divorce
A. POLICY: Property à figure out who owns what à want clean and clear title
B. POLICY: Figure out who has custody of children and who will pay for children
C. POLICY: Parties didn’t enter marriage w/ the idea that they would be forced to endure marital discord
D. POLICY: State is responding to dependency
E. POLICY: Promoting commitment
F. No Harm, No Foul
1. POLICY: Before children or longer term commitment results à give people the ability to escape b/c keeping them in marriage is worse
2. POLICY: Presumably then might have children if force parties to stay together
G. POLICY: State wants them out precisely so the situation is not worse
II. Incidence of Marriage: What kind of Benefits Flow from Being Married
A. Survivor benefits
B. Rent control preferences
C. Tax benefits (joint-tax return)
D. Medical benefits
E. Employment benefits
F. Ability to visit at the hospital
G. Ability to direct other person’s care
H. Ability to inherit
I. Ability to own property jointly
WHEN ARE ADULT PARTNERS A FAMILY?
DEFINING “FAMILY”
I. Hewitt v. Hewitt [W lived w/ H for 15 years, in unmarried, family-like relationship, 3 children born]
A. FACTS: Met at college, became pregnant, H told W they were married; & no formal ceremony required, he would share his life, his future, his earnings, and his property w/ her; each owned property in his or her name
B. HELD: Since P was not married and was prevented from asserting claims against D based on K or equity principles, their relationship was essentially that of long-term roommates
C. GENERAL ROL: You are not getting spousal support unless you are married
D. ROL: Get married if you want spousal support/property from marriage so expectations are satisfied
E. POLICY: If you didn’t marry, your relationship reduces to support for sex à historically dim view of these sorts of arrangements viewed as support for sex; not want to promote sex outside of marriage
F. POLICY: Will not make the alternative to marriage more attractive by allowing the parties to engage in such relationships w/ greater security
G. POLICY: Want a bright line rule, want to promote marriage, not these kinds of relationships
H. Express K à H argues it is vague, hard to figure out what “share li
r they owe any duties
3. Expectations à parties themselves may not know whether owe each other rights or duties
4. Ad hoc, so judges might come out different ways
5. Those not married must be confined to traditional box; those who are married do not have to be inside of the box (i.e., not matter if commingle funds if formally married)
D. WILSON: Traditional test à bright line; here, maybe hard for parties/3rd parties to plan/anticipate
1. When you make it easy for folks to know what will happen, easier for them to decide whether or not to have that relationship and to know what rights/duties owe one another
2. To bring clarity to their relationship and get protection, have to jump through all these loops (medical forms, power of attorney, insurance forms, accounts); married people not need to do
E. EXAMPLE: Joey and Chandler on Friends à Under Braschi probably not, b/c Braschi had conjugal visits/physical intimacy as well as everything else à they mean couple, structuring lives to be like one
III. Cases about Who Counts as Family
A. Inter Se (B/twn the Parties) [Hewitt]
B. 3rd Parties [Braschi]
IV. State Approaches to Marriage
A. Facilitative Approach (Braschi)
1. DEF: Make it easier for folks who want to marry to live together as if they were married
B. Regulative Approach (Hewitt)
DEF: If you guys chose to act like traditional family unit, you guys are going to owe certain things to each other and certain rules will apply to one another
