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Family Law
Wayne State University Law School
Abramowicz, Sarah

Family Law
Winter 2013
A.    Importance of defining a family
1.      rights and obligations vis a vis other family members and the state
2.      Freedom from Interference from law (constitutional right)
3.      health insurance and other benefits
4.      Immigration benefits
5.      testimonial privilege
6.      commitment
7.      inheritance
8.      medical decisions
9.      wrongful death suits
10.  property rights
B.     Traditionally a matter of state law but fed law is increasingly getting involved with custody, child support, DOMA, as well as placing constitutional limits
C.     Why state regulates marriages?
1.      Ensure stability for children,
2.      Promote commitment and financial responsibility
3.      Avoid chaos with disputes
4.      Protecting sacrifices and commitment (protecting the vulnerable party)
5.      provide safegaurds even when people don't plan for the dissolution
D.    Law and Changes
1.      Thwart v. Accept and adopt
2.      Formal v. Substantive Equality
E.     Who is a family?
1.      Hewitt v. Hewitt
i.        Couple had been cohabitating, holding out as husband and wife. Wife presented claims under contract and equity for property division.
ii.      Issue: Whether court could recognize any claims arising from cohabitation?
iii.    court ultimately doesn't want people to create a separate structure of “family” outside of the law and without the protections that the law affords, also concerned with undermining current family structure and encouraging illicit relationships
2.      Formal v. Functional Definition
i.        Braschi v. Stahl Associates Company
a.       Party named on lease passed away, partner wanted to stay in rent controlled property
b.      Code only allowed rent control to be passed on to others in the same “family”, but never defined family
c.       Landlord argued that family was defined as blood, consanguinity, or adoption (from inheritance law)
d.      Ct looked at the reality of the circumstances- dependence, commitment, public, exclusive, long term (functional definition- specific to the purpose of rent control)
e.       Dissent- need a more formal test because the definition given by court is subject to fraud, requires case by case litigation, not role of court
ii.      Borough of Glassboro v. Vallarosi
a.       city wanted to create a law that was inclusive of non-traditional families but excluded college students,  so it defined family as a “traditional family unit or its functional equivalent”
iii.    Benefits of formal definition
a.       notice
b.      have to take affirmative steps to become a family (won't find yourself burdened without choosing it)
c.       cuts down on litigation
d.      freedom and privacy if formally defined (no need to inquire into behavior to determine if they are a family, no need to meet requirements of being a perfect family)
iv.    Benefits of functional definition
a.       fairness (esp. to same sex couples)
b.      softens the blow of discrimination
c.       not clear when it would apply to those who are able to marry but chose not to
3.      Level of Scrutiny in Defining Family
i.        City of Laude v. Horn- Concluded that defining family based on blood, marriage, or adoption for purposes of zoning was constitutionally permissible based rational basis
a.       no suspect class
b.      fundamental right
1.      Belle Terre- limiting communal living (limited to family) situation met rational basis and did not infringe on any fundamental rights
2.      Moore v. City of East Cleveland- statute limiting number of blood relations in a household deemed to infringe on fundamental right of family
ii.      Other states have differed (and followed East Cleveland on this point)
iii.    Discrimination on the basis of marital status
a.       Half the states prohibit discrimination on the basis of marital status
b.      States are split as to whether this includes cohabitating couples (MI says it does)
c.       Landlords cannot use religion as an excuse to prohibit cohabitation (though states are split on this)
Premarital Controversies
A.    Breach of Promise to Mary
1.      Rivkin v. Postal
i.        Breach of promise to mary in Tennessee required proof by mean of written evidence or two disinterested witnesses
ii.      Plaintiff could only provide a joint deed and her parents as witnesses (which weren't disinterested)
iii.    based on theory of contracts, which requires evidence of promise, consideration, and then remedy would be expectation and reliance damages.
2.      Traditional Heart Balm Actions
i.        Breach of Promise to Mary
a.       was available under contract law as a contract/tort hybrid claim
b.      purpose- to compensate suffering endured because of loss of relationship
1.      damage to social and economic status
2.      broken engagement often meant no other prospect of marriage
c.       Remedy- included punitive damages, reliance damages, and expectation damages
d.      defenses- physical or mental defect that interferes with marital relations
ii.      Seduction 
a.       previously chaste woman who had sex premised on promise to marry
b.      recognized by 17 states as intentional fraud
iii.    Alienation of Affection
a.       tort that involves spouses who have affairs
b.      brought against spouse having the affair or a third party who encouraged it
iv.    Criminal Conversation
a.       action brought against person having affair with your spouse
3.      Other states
i.        Many states abolished the claim (all claims arising out of heartbalm actions) in the 1930s
ii.      Cannot bring a breach of promise to marry suit in MI
iii.    In NY it is a felony to threaten to bring such a case
B.     Gifts in Contemplation of Marriage/ Engagement Rings
1.      Contract         
i.        Ring is consideration for promises to marry
ii.      problem is that defense will be that its a breach of promise to mary claim (which cannot be brought)
2.      Conditional Gift
i.        gift that only vests when condition is met (marriage happens)
ii.      implied from understanding of the social moment
iii.    courts don't like to look at a gift and imply conditions, but will do so in this circumstances
iv.    fault matters in who gets to keep the ring, one at fault for breaking the engagement

valid under immigration law (because didn't intend to establish a lift together, i.e. sham marriages) were still marriages for the purposes of family law
b.      Schibi v. Schibi
1.      marriage undertaken only to legitimate a child is a valid marriage
2.      validity of a marriage is not affected by pre marriage agreement not to live together
3.      rationale: don't want people to abuse the sustem. To allow limited purpose marriages to not be valid marriages would undermine the stability of thinking you are married
c.       Some states will annul marriages undertaken in jest but not all
ii.      Capacity to agree
a.       Edmunds v. Edwards- developmentally disabled H, court held that what is required is capacity to understand what marriage is and what he is agreeing to, not actual knowledge of family law
b.      Changes in Capacity
1.      if person had capacity at time of marriage and later loses capacity, then marriage is still valid
2.      if person does not have capacity at time of marriage but later gains capacity and continues to stay in marriage, then marriage is ratified and thus valid
c.       Voidable (not void) if lack capacity, so not voidable by third party posthumously
iii.    Fraud
a.       Requirements under contract law:
1.      misrepresentation
2.      reasonably rely on misrepresentation to consent
3.      materiality
b.      only certain misrepresentations providing for voiding a marriage
1.      must go to “essence of marriage”: sex, procreation, or child rearing
2.      Ramirez (outlier)
·         husband never intended to have a monogamous relationships
·         fraud was deemed to go to essence of marriage: fidelity/sex
c.       voiding
1.      English view
·         only void for error of person (jacob and rachel situation)
2.      Majority/U.S. View
·         fraud must go to the essentials of marriage (sex, procreation, or child rearing)
·         must connect as tightly as possibly to sex or procreation
·         have to prove that the condition existed at the time of marriage and spouse lied or deceived, something that when discovered makes a difference
·         NOT simply changing your mind (that would not constitute fraud)
·         NY- must be material such that wouldn't have consented to marriage, but not regarding wealth or social position
·         Ex: wife promised to do dishes during marriage but never did. No fraud claim for broken promises (vs. if she didn't disclose that she was physically incapable of doing dishes), not material (even under NY rule)