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Family Law
Wayne State University Law School
Abramowicz, Sarah

Chapter 1: When are Adult Partners a Family?

legal ramifications: property, custody, benefits, health decisions, immigration, etc.
Family Law – State law matter
federal law seems to be playing an increasing role in family law, constitutional limits via federal statutes
Why does the State regulate marriage and family? What are its goals? What interests are at stake? Why does the State define family the way it does?
STATUS V. CONTRACT: Law imposes rights/responsibilities that follow automatically from the status of being married, or in other family relationships; To what extend should individuals be allowed to customize or alter (e.g. through private K) these legal rights and responsibilities?
SOCIAL CHANGE: what does today’s family look like? Re: unmarried cohabitants, childbirth outside of marriage, women in workforce; How should the law respond to changing social practices/family forms? adapt/recognize? try to thwart/channel?
Institution: courts vs. legislatures
GENDER ROLES: What should the law’s role be in shaping and recognizing gender roles within marriage? Formal equality vs. substantive equality; substantive equality: recognize the gender implications of marriage that exists in practice

Hewitt v. Hewitt (Supreme Court of Illinois, 1979) FORMAL DEFN

division of property & rights/duties between “family” members
Facts: 15 year common law marriage in Illinois (no common law marriage exists in Illinois) at time of break up they have 3 kids, she helped and supported H as a W and Mother to build his professional practice
Issue: can she get an equal share of the property accumulated during the 15 year relationship?
Common law marriage: 1. Intent to be married, 2. Community belief, 3. cohabitation
Reasoning/Holding: Court doesn’t dismiss arguments but says that for public policy reasons she cannot recover. Can’t be promoting people to live in “illicit”/”meretricious” relationships; bad for society, bad for children involved; couple will unfairly be left without recourse if these relationships are promoted; will weaken the institution of marriage; even if valid contract/trust arguments must look to public policy
Arguments: Mrs. H argues contract theory: 1. Express K – he said he would share, 2. Implied K – they lived in a family-like relationship and it was an implied promise, 3. Equitable remedy – he was unjustly enriched, lied about being married
*Court unwilling to acknowledge/allow private arrangements that opt out of the usual rules of marriage

Braschi v. Stahl Associates Company (New York Court of Appeals, 1989) FUNCTIONAL DEFN

subtext: gay couples, AIDS crisis
Facts: Miguel Braschi lives with Leslie Blanchard for 11 years. Blanchard dies; Braschi is threatened with eviction.
Issue: Is Braschi a “family member” within the meaning of NYC’s rent control code?
Landlord (LL) has interest in now renting apt. at higher rent. If tenant of RC apt dies, other occupying persons will be evicted. Unless they’re the “surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant.”
Arguments: What does the LL argue? only those entitled to inherit under the state laws of intestacy should be considered a family member. under this definition, family refers to “relationships of blood, consanguinity and adoption.” This is a bright line, easy to follow rule that will keep tenants on notice.
Holding: Remanded to lower court. Consider a functional definition of family. How does the court define family w/in meaning of RC code? a functional definition: includes “two adult life-time partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence”

How does the court characterize the definition of family that the LL argues for, but the court rejects? The interests of intestacy are different from the interests of Rent Control, interests of rent control are about protecting vulnerable family members the LL wants to adopt a formal definition: definition of family “should not be rigidly restricted to those people who have formalized their relationship” these are “fictitious legal distinctions,” at odds with the “reality of family life”

What factors are relevant in determining whether a couple is functionally a family?

“level of emotional and financial commitment”
“exclusivity and longevity of relationship”
manner in which they “held themselves out to society”
reliance placed upon one another for daily family services”
A totality test

look for evidence of “dedication, caring, and self-sacrifice”

Application of test?

10 year marriage, family members knew about the relationship, finances and budgeting together, act like a married couple

Dissent: should be a formal test; problems with functional test: subjective , potential for fraud, unworkable; impractical case-by-case evaluation, better left to legislature


Benefits: notice, bright-line rule, everyone knows what a family is, must affirmatively do something to be part of a family, predictability and litigtion incentives, Freedom/Privacy – if formal then no need for court to scrutinize relationship, if formally married then can act however you want to


Benefits: Fairness, softens effects of discrimination against unmarried/same-sex couples, relevance of whether formal marriage unavailable?

City of Ladue v. Horn; Borough of Glassboro v. Vallorosi

zoning; relationship between “family” members and the State

City of Ladue v. Horn

Facts: Joan Horn (two children) and E. Terrence Jones (one child); not married but share bedroom, maintain joint checking account for household expenses, eat meals together; entertain together, discipline each other’s children
Issue: zoning ordinance in Ladue requires one-family residential zone – definition of family: “One or more persons related by blood, marriage, or adoption, occupying a dwelling unit as an individual housekeeping organization.” Is this “family unit” protected?
Holding: No they are not protected. The Ladue zoning ordinance does not violate their constitutional rights. They are not a conceptual family; there is no fundamental right at issue, so the test is rational basis and the city does have a rational basis for restricting who can live in certain areas
Arguments: Defense arguments: 1. They constitute a “conceptual family” ; 2. Constitutional right to live together

1. Do the Defendants constitute a “conceptual family”?

D’s arg: yes, bc. live in identical manner as legal/biological families
Ct: not a conceptual family

no commitment
no perceived reciprocal obligation of support and care

2. If they are a “conceptual family” – does it violate the Constitution to prohibit them from living together? Does a zoning ordinance violate the Constitution by limiting residence to families linked by blood, marriage, or adoption?

Argument hinges on 14th Amendment – Equal Protection Clause
Issue = level of scrutiny

1. Strict Scrutiny — is the ordinance “necessary to protect a compelling government interest”
2. Rational Basis test — does the ordinance bear a “rational relation” to a “permissible state objective”; is it “reasonable,” and not “arbitrary”

What determines the level of scrutiny that will be applied?

if legislative classification affects a suspect class or fundamental right: strict scrutiny applies
if not: rational basis test applies

•Due Process Clause – 5th and 14th Amendments
wsubstantive due process
wprotected “liberty” interest includes certain fundamental rights
§includes “freedom of personal choice in matters of marriage and family life”; child-rearing; procreation

Ladue’s Purpose of zoning ordinance: health, safety, morals and general welfare in the city
Essence of zoning is selection
Here – we are dealing with economic and social legislation and not a fundamental interest or a suspect classification, the test of constitutionality is whether the ordinance is reasonable and not arbitrary and bears a rational relationship to a permissible state objective
1. Village of Belle Terre v. Boraas (1974) Ordinance limits occupancy to “one or more persons related by blood, adoption or marriage living together as a single housekeeping unit [or] a number of persons but not exceeding two living or cooking together as a single housekeeping unit though not related by blood, adoption, or marriage”

6 college students
the Ct found that the ordinance did not involve a fundamental right, because it was typical “economic and social legislation.”
so – rational basis applies

2. Moore v. City of East Cleveland (1977) Ordinance prohibits grandmother from living with son and two grandsons Ct: infringes right of “freedom of personal choice in matters of marriage and family life.”

fundamental right – substantive due process

strict scrutiny

Dsts. Belle Terre bc. that ordinance affects “unrelated” individuals only vs. here – “slic[es] deeply into the family”

Constitution protects extended family as well as nuclear familybc. extended family deeply rooted in American tradition

dst. Belle Terre – here, family is related by blood

When does zoning violate fundamental right?
Village of Belle Terre v. Boraas (S. Ct. 1974)

prohibits three or more persons unrelated by blood, adoption or marriage from living together – NO

Moore v. City of East Cleveland (S. Ct. 1977)

prohibits blood relations from living together – YES

Application to Ladue:

Ct– no fundamental interest in unmarried cohabitants living together
So – rational basis test applies

Borough of Glassboro v. Vallorosi (New Jersey 1990)
* minority view followed by MI, NY, NJ


ouse). Lori sues for breach of promise to marry
· Issue: Can she recover under this claim? Under usual K law – enforceable contract? Does it need to be in writing?
· Holding: Lori failed to carry her burden, parents don’t count as disinterested witnesses
· Under K law – look to Statute of Frauds
o ex: MI SOF
o MCL 566.132. Agreements, contracts, or promises for which signed writing required; enforcement

Sec. 2. (1) In the following cases an agreement, contract, or promise is void unless that agreement, contract, or promise, or a note or memorandum of the agreement, contract, or promise is in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise:
o (c) An agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry.
· Under usual K law – enforceable contract?
· Statute of Frauds not a problem
· Analysis: Is there sufficient evidence that David promised to marry Lori? engagement ring tussle; he doesn’t contradict when she tells parents they will marry but no discussion of wedding plans; acting married?
o If David did promise to marry Lori – enforceable K?
o consideration? Promise to marry
o what would Lori’s damages be under K law?
§ expectations? Put you in position you would be in if promise was not broken
§ reliance? What did she lose?
· Chance to marry someone else
· Opportunity to go to school
· Business losses, work expenses
§ punitive damages? Available in breach of promise cases
· Does usual K law apply?
o Breach of Promise to Marry = special type of claim
o hybrid contract/tort claim that included punitive damages
o 1930s – many states abolished the action – bc. Abuses
o Tennessee?
§ retained the action – but imposed limits
§ damages limits
§ no punitive damages if breaching party over 60
§ evidentiary limits: to establish contract of marriage, need either
· signed, written evidence, or
· testimony of two disinterested witnesses

“Heart Balm” Actions (see PP notes for more info)
· eg: breach of promise to marry; seduction; alienation of affections; criminal conversation
· 1930s and later – “anti heart-balm” statutes: eliminated some or all of these causes of actions in many states
o MI – heart-balm actions abolished
o NY – it’s a felony to threaten to bring such an action
Breach of Promise to Marry
· Only available in a few jurisdictions: Illinois, Maryland, Oklahoma, Texas, Georgia, and Louisiana
· Traditional Defenses:
o physical and mental defects: an illness that intereferes with marital relations, eg. OCD not enough
o plaintiff’s unchastity
o plaintiff’s lack of love for defendant:
o subsequent good-faith offer to marry not a defense but may mitigate damages
· Damages:
o can recover typical K damages: expectation monetary and social value of marriage
o reliance = costs of wedding; expenses incurred in preparation of marriage
o but in some jurisdictions can also recover damages usually available only in tort: mental anguish and humiliation
o punitive damages (some jurisdictions)
Policy Issues:
· how is the promise to marry similar to other contracts?
· How is it different?
· Why enforce? Why not?
· Should legal consequences flow from breaking a promise to marry?
· What about in context of deliberate misrepresentations for purpose of engaging in sexual relations?
o Impedes people’s free will
o Marriage is serious and people will rely on a promise
o Court shouldn’t prevent people from breaking up when it’s the right thing to do
o Depends on value of traditional ideas about chastity, gender roles – women’s job to marry, role of marriage in defining a woman’s identity
o People can get used unfairly

Gifts in Contemplation of Marriage – Engagement Rings
Engagement Rings; Wedding Expenses
Engagement Ring:
1. ring as consideration
2. ring as absolute gift
3. ring as conditional gift
· where does the condition come from?
· What is the relevance of fault in breaking off the engagement?
o 2 approaches
§ donor entitled to return of ring if unjustifiably broke off engagement
§ donnee who broke it off must return ring unless breaking it off was justifiable
Meyer v. Mitnick: