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Family Law
Wayne State University Law School
Abramowicz, Sarah

FAMILY LAW OUTLINE FALL 2007- PROF ABROMAWICZ

I. MARRIAGE AND ITS ALTERNATIVES
1. When Are Adult Partners A Family[FUNCTIONAL v. TRADITIONAL] ¨ Braschi v. Stahl Associates Company [promotion of “functional equivalent”] Þ FACTS: Braschi lives w/ gay Partner in rent controlled apt. for 11 yrs. —when partner dies Stahl asks him to move out b/c only P was tenant of record — Statute provides eviction protection to “…some other member of deceased tenant’s family”—- “family” not defined in code.
Þ RULE:“family” as used in this law should not be limited to marital or adoptive r/s. Must consider:
—exclusivity and longevity of r/s ––level of financial and emotional commitment —-manner in which parties conduct lives and hold themselves out —–reliance parties place on each other for daily family services
¨ City of Ladue v. Horn [promotion of “traditional family”] Þ FACTS: Zoning ordinance limited households to individuals related by marriage or blood. D’s were an unmarried couple living together. City brings action to enforce ordinance.
Þ RULE: A municipality may limit households to individuals related by blood or marriage so long it is rationally related to a permissible gov interest [i.e. promotion of traditional family at the expense of “functional equivalent”] ¨ Borough of Glassboro v. Vallorosi [promotion of “functional equivalent”
Þ FACTS: 10 unrelated college students rent a house together. Zoning ordinance limits occupancy to family’s: “1 or more persons as a sinle non-profit house-keeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional equiv thereof.” —town seeks injunction.—
Þ RULE: unmarried cohabitants of the same sex may be considered a “family” if they share living spaces and expenses, eat meals together, and intend to remain together for some time.
Þ RULE: Municipalities may adopt zoning regulations restricting certain residential zones to single housekeeping units, but the definition of such a unit must remain flexible and generous and cannot impermissibly distinguish b/t related and unrelated persons.
2. The Important of Being Family
A. —
B. Marital Property
1. Ownership and Control of Wealth
a. The Common Law Tradition [coverture] – R: while single, Women rights to contract and property = Mans
– R: Upon marriage: = COVERTURE [wife = “femme covert”] o Real Property: H entitled to use of W’s property for period of marriage; if child born then during H’s life. —Absolute rights to Rents —WHY?: upon marriage H/W become 1. —W gets life estate in H’s land—-H cannot alienate property during marriage—
o Personal Property: H even more rights than RP. However, H has liabilities of wife too.
o —-
– Modifications to CL tradition[Married Women’s Property Acts] o System ended CL property scheme: MAIN PURPOSE: Gives a married women the same legal capacity to deal with ther property that single women had. [see ex. P.38] —only address “separate property” not to property gained during the marriage.
o Name on title is owner

¨ Murdoch v. Murdoch[1975][property gained during the marriage] Þ FACTS: W claimed 1/2 interest in property consisting of a ranch and related assets, which were titled solely to H. —- W was employed doing chores on ranches—H’s earning used to invest in ranch at issue —
Þ RULE: in order to assert a beneficial interest in marital property that is titled solely to 1 spouse, the asking spouse must show the existence of “common intention to share beneficial interest in that property” and his monetary contribution [i.e express/resulting trust] Þ NOTES: constructive trust: 2 views: Traditional Const Trust: only if fraud or duress —–Modern Const Trust: unjust enrichment

b. ——-estate by the entirety NOT REALLY COVERED
¨ mode of owning property by spouses- key: neither can sever by unilateral action
c. Community Property: principle that recognizes that both spouses own wealth acquired by the labor of either of them during the marriage
-remember: premarital wealth: = separate property
-management authority systems for community property
– joint management: must act in tandem
-sole management: one spouse controls
-equal management: either party may exercise control
-Uniform Marital Property Act: [only adopted by WI see p.51] Each spouse has 1/2 interest in marital property
Gifts:
-need written permission of other spouse
[see slide] 2. —–
3. The Daily Management & Control of Marital Wealth
¨ McGuire v. McGuire [Neb. 1953] [ limitation on spousal duty of support: family privacy doctrine for INTACT marriage] Þ FACTS:33 year marriage. W cooks, cleans, performs household chores. —Despite H’s substantial assets he fails to provide clothes, furniture, household needs, or entertainment.—-W brings action for support order.
Þ RULE:a spouse has duty to support other spouse commensurate w/ financial standing.
Þ RULE:doctrine of nonintervention: while marriage is intact [not separated] Ct will not intervene; For PP reasons a married couples disputes are not for judicial resolution [side rule: H must provide support commensurate w/ financial position] Þ WHY?: 1] desire to preseve marital harmony & 2] judicial reluctance to adjudicate trivial matters & 3] view that H, as head of family, should determined family expenditures, & 4] existence of CL rule precluding W against H suits.
¨ Sharpe Furniture, Inc. v. Buckstaff [Wis. 1980] Þ FACTS: W bought goods on credit from Sharpe.— H had previously told S that he wouldn’t be responsible for credit—H/W Took goods but never paid.
Þ RULE: under Doctrine of Necessities when item/service, necessary for the maintenance of F, is purchased but not paid for, H is held primarily liable = action for implied k may be brought.
Þ NOTES: [Doctrine mostly abolished due to EPC issues.
-CL rule of Necessaries requires H to provide not only “bare needs” but whatever is possible giv

[even when married] at the level of “single woman” and is entitled to all legal rights.
2-domestic tranquility argument illusory: tranquility is comprimised when tort occurs not at time legal action taken.
3-Fraud/collusion flawed: cts are prepared so we cannot deny right to an entire group because of the possible violation of a few.
¨ Hill v. Hill [FL 1982] Þ ISSUE: should interspousal tort immunity be modified or abolished.
Þ RULE: ITI doctrine should not be abolished b/c it serves the gov interest of protecting the family from intrusion which might hurt the r/s or financial situation.
Þ NOTES: Ct does say that injuries may play a role in determination of alimony but that it doesn’t want adversary tort system to intrude into family dispute while parties are married.
3. Entering Ceremonial Marriage
A. Introduction
¨ 4 general requirements: 1] consent 2] competent 3] eligible to marry each other 4] complete required formal process
B. Formalities
¨ UMDA: includes “medical exam” requirement —permits solemnization by unqualified person so long as “either party” believe that person was qualified. —- allows proxy marriage w/ written authorization.
¨ CEREMONY: generally required in all states that don’t recognize CL marriage [most ceremonies are acceptable] ¨ Void: never valid
– remember: license requirements don’t usually void a marriage; they are treated as “directory” instead of “mandatory” but not in all jurisdictions.
¨ Voidable: has possibility of becoming valid [i.e. minor who becomes of age] ¨ Divorce vs. Annulment:
-divorce is dissolution of valid marriage;
-annulment is declaration that marriage is void.

C. The Agreement to Marry
1. The Content of the Agreement
¨ Lutwak v. United States [1952] Þ Facts:Petioners devised a plan whereby 3 family members would formally “marry” 3 veterans to gain u.s. residency. — when in u.s. they would sever the “legal” ties.
Þ RULE:Aliens may not circumvent immigration laws by fake marriages in which neither of the parties ever intended to enter into the marital r/s IOW: for purposes of immigration simply carrying out formal marriage process is insufficient, there must be “real” intent.
Þ NOTES:P arguments: regardless of intentions; the fact ceremonies were conducted = legal marriage. = U.S would need to prove illegality under French laws.
¨ Schibi v. Schibi [CT 1949][