Select Page

Family Law
Wayne State University Law School
Abramowicz, Sarah





1. What is a Family? Why does it matter?

1. Hospital Rights, Wills, Parental Rights, Immigration Law, Taxes, Insurance, Housing Rights, Crim Law, Torts, Testimonial Privileges, Property Ownership.

2. Family Law is normally a state matter, but federal law also plays a role (i.e. constitutional limits and federal statutes)

3. Themes – Social Change

1. Unmarried Cohabitation – 1960: 439k to 2000: 4.7m

2. Childbirth Outside Marriage – 1960: 5.3% to 2000: 36.8%

3. Women in the Workforce – 1960: 33.9% to 2000: 60.2%

2. How does the Law define Family?

1. Hewitt v. Hewitt (p. 13) – Formal Definition

1. Division of property, rights/duties between “family” members.

2. F became pregnant, M tells her they are married and no formalities needed. M also tells female they will share their life/future/earnings/property. Held out as married in public and have 3 children.

3. Court rules that “contract” is unenforceable as it is against public policy. The F gets nothing.

4. Benefits of Formal – Notice, bright line rule, everyone knows definition, must affirmatively do something, predictability in litigation and freedom/privacy

2. Braschi v. Stahl Associates (p. 15) – Functional Definition

1. M and other M lived together 11 years. M died, other M threatened with eviction. Surviving spouse or family can keep the apt under NYC law

2. Court rules that they can be viewed as a functional definition of a family using the totality test, after looking at the dedication, caring and self-sacrifice, a court could rule them a family.

3. Benefits of Functional – Fairness, softens effects of discrimination on unmarried, doesnt matter if formal marriage is available

3. City of Ladue v. Horn (p. 20) – Rational Basis used in unmarried cohabitants

1. One family zone, states family as related by blood marriage or adoption. M with 2 children is living with F and child and not married and share bedroom. But live as “family”.

2. Ct says no fundamental interest in unmarried cohabitants living together so rational basis applies. Zoning statute is upheld. Family has to relocate.

4. Borough of Glassboro v. Vallorosi (p. 26) – Stability and Permanency can equal Family

1. Borough defines family as one or more persons occupying a dwelling unit as a single non profit housekeeping unit, who are living together as a stable and permanent living unit, being a family unit or the functional equivalent thereof.

2. Students living together at college, keep common checkbook and all pay rent and eat meals together and intend to stay.

3. Ct says the students are living as a functional equivalent, because the court focused on stability and permanency.


1. Breach of Promise to Marry

1. Rivkin v. Postal (twen) – No statute of frauds in Breach of promise to marry

1. F meets M, moves to Memphis from Atlanta to live with him. Have a child together and move again. M is well off and F lives a lavish lifestyle. M was married at the time. M then divorces his wife and breaks up with F. F wants breach of promise to marry.

2. Does promise need to be in writing? Look at Statute of Frauds. Ct says does not apply. Was their enough evidence and is it enforceable? Its a hybrid contract/tort claim. Some states have ABOLISHED the action because of abuses.

2. Heart Balm Actions

1. Traditionally for: breach of promise to marry, seduction, alienation of affections, criminal conversation. 1930’s and later – “anti heart-balm” statutes eliminated most if not all the causes of actions in many states. MI – hear balm abolished. NY – its a felony to threaten to bring such an action.

2. Gifts in Contemplation of Marriage – Engagement Rings

1. 3 possible scenarios

1. Contract – ring as consideration

2. Gift – ring is absolute gift

3. Gift – ring is conditional gift (completion of marriage) (most states, MI)

2. Albinger v. Harris – only court to rule this way

1. Anti heart-balm statute has disperative impact on women

2. Rejects conditional gift theory, W gets to keep ring

3. Bruno v. Guerra – wedding expenses not to be recovered

1. M breaks off engagement with F. F wants to recover 28k given to couple by her father in anticipation of marriage, was used on wedding expenses and 5k given as gift and deposited in joint savings account.

2. Ct rules cant recover the 28k, barred under heart-balm statute. M was not unjustly enriched.


1. Formal Requirements

1. Formalities

1. Usual Requirements

1. A marriage license

2. Solemnization

2. Void/Voidable Marriages

1. Void marriage – never existed, i.e. no license or ceremony or couldn’t legally marry

2. Voidable marriage – can be declared invalid i.e. under age of consent. Annulment

3. Divorce – ends a valid marriage

4. Annulment – again, means it never existed

3. Pickard v. Pickard (154) Solemnization, ordainment

1. married at cherokee ceremony. Conducted by someone with universal life church ordainment. 11 years later H files for annulment on basis of not properly solemnized.

2. Ct agrees with H, NC statute says marriage must be solemnized by a minister of the gospel licensed to perform marriages. BUT, ct denies annulment on basis of judicial estoppel.

4. What happens when a couple has a ceremony but fails to fulfill the license requirement?

1. Majority view – Carbetta and Persad v. Balram (NY) interpret license requirement as directory not mandatory, public policy favoring valid marriages.

2. Minority view – not valid, Yaghoubinejad v. Haghighi (NJ).

2. Agreement to Marry

1. Content of the Agreement

1. Lutwak v. US (160)

1. War Brides act allowed “


5. Age

1. Porter v. Dept of Health & Human Services (213)

1. Parents consent to 16 year old to marry 34 year old. During neglect hearings, child lawyer wants to void the marriage.

2. Ct reverses lower ct, saying 16 y/o had mental capacity to marry and no misrepresentation was involved

6. Polygamy

1. State v. Holm (220) – Criminalizing polygamy is not barred by Lawrence

1. M legally married F, entered a religious marriage with another F and later with a third 16 year old F.

2. Ct – Lawrence decision does not mean polygamy should also be allowed. Criminalizing polygamy is still allowed.

3. Conflicts of Law

1. Choice of Law Rule:

1. A marriage that is valid where celebrated is valid everywhere.

2. Public Policy Exception:

1. This rule only applies if recognition of the marriage would not offend forum state’s public policy.

3. Marriage Evasion Statutes:

1. Some states have them. Declare marriages void if entered into in another state for purpose of evading home state restrictions

4. In Re May’s Estate (234) – Law in one state must declare other state law void

1. Child seeks parents RI marriage void in NY because they were uncle and niece.

2. Ct hold that NY law muse expressly state that void if from another state, and it does not. Also it is not a public policy exception. Marriage upheld

5. Interstate Marriage Recognition

1. Full Faith and Credit:

1. Art. IV, §1 of Constitution: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Traditionally applies to judicial decisions or decree. Is marriage a “judicial proceeding”? Is marriage a “public act”? Typically, public act means legislation

2. Unclear if FF+C applies to marriage

1. And, traditionally, states have refused to recognize out-of-state marriages that violate state public policy.

2. Federal Defense of Marriage Act (DOMA) (1996)

1. States not required to recognize valid same-sex marriages entered into in another state (FF+C Clause not require recognition). (28 U.S.C. § 1738C)

2. Defines “marriage” and “spouse” for purposes of federal recognition/benefits. (1 U.S.C. § 7)

1. Marriage = union between a man and a woman

2. Spouse = only a person of the opposite sex