Family Law Outline

I. Themes in Family Law: defining family (constantly changing), privacy of the family, gender and sexual orientation hues.

II. Constitutionals Protections in Family Law

a. Right to privacy in marriage recognized as a fundamental right in Griswold

b. Parental autonomy: Right to establish a home and bring up children and right to determine how to educate your child –Meyer and Pierce

c. Right to Marry – Constitutional Limits on State Regulation to Enty Into Marriage

i. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” Loving

ii. Cannot Restrict Interracial Marriage:(Loving)

i. Expressly used Strict Scrutiny

iii. Cannot Restrict Martial Rights, making parents seek permission of court and then denying it if one of 2 case (Zablocki)

i. Used critical examination of state interests in terms of the classification and minimal examination in terms of regulations (?)

iv. No rational basis to deny prisoner’s right to marry. (Taylor)

i. Uses rationale basis test.

v. Same-sex Capacity to Marry –varies state to state

i. Goodridge: (Mass) 14th no rational basis for restriction on fundamental right to marry

ii. Kerrigan (Conneticut): found marriage a fundamental right and sexual orientation a quasi-suspect classification

a. Used heightened scrutiny

b. Sexual Orienatation found to be quasi-suspect because see p. 3 of O.)

iii. Sexual Orientation suspect class in Cali BUT case that legalized same sex marriage bedause of this was abroagated with Propostion 8. But court upheld validity of 18,00 same –sex marriages that were performed bf th vote.

iv. Choice of Law Issues with Same sex- marriage : traditional way = full faith and credit clause; RST 2nd different though (see p. 3 of O)

v. Federal DOMA: specifies marriage is union btw man and woman AND specifies that states are not required to give effect to same-sex marriage under the Full Faith and Credit Clause

a. Neither civil unions nor domestic partnerships are recognized for the purposes of federal benefits.

vi. State DOMA: express state strong public policy—a significant element in trandtional choice of law—against same sex marriage.

III. How Dating and Marriage has Changed—basic, see p. 4 of O for info

IV. Marriage as a Contract and a Status

a. Something more than a K; Other Ks may be modified, restricted or enlarged upon consent of parties but not with a marriage. Both status and a K. Tension in courts—some see it as a K others more flexible.

V. Breach of Promise to Marry?

a. Majority: do not recognize claim for breach of promise to marry (including WV)

i. West Virginia does not allow it via Code § 56-3-2a

b. Minority: allow the claim, but often with limitations

i. For info about these limitations, see p 4 of O.

c. Historical background of claim, damages for it, and defenses—p. 4 of O.

VI. Tort Liability for Seduction Only in CL: defined as consent to sex by an unmarried, previously chaste woman in reliance of false promise to marry. Action was maintainable not only by woman, but by one entitled to her services.

VII. Gifts in Contemplation of Marriage: seeking value of gift after break up

a. If view the gift as conditional on marriage

i. “Fault-based” Approach: (Maj) donor is entitled to return of engagement ring only if engagement was broken by mutual agreement or unjustifiable by the done. (Rationale= p. 5 of O)

ii. No-Fault” Approach: (Min + Rst3rd) once an engagement is broken the engagement ring should be returned to donor, regardless of fault. (Rationale = p. 5 of O)

b. If do not view the gift as conditional: stating that engagement ring is an irrevocable, not conditional gift to avoid gender bias. –possibly make both parties equally liable for expenses.

c. Note: could also sue under to recovery under fraud or unjust enrichment.

VIII. Prenuptial Agreements

a. View 1: Treats agreements as ordinary Ks; rejects examination of substantive fairness (Simeone) and uphold unless fraud, duress, or misrespresentation; financial disclosure just needs to be “full and fair” but not exact.

b. View 2: Although treats as K, underscores the need for special protects and requires both substantive and procedural fairness. (Shanks)

i. Substantive unconscionability : whether the provision of the K are mutual or the division of property is consistent w/ the financial condition of the parties at the time of the execution.

ii. Procedural unconsionability: advantaged party’s exploitation of the disadvantaged party’s lack of understanding or unequal bargain power

i. factors to show this on p. 6 of O.

iii. American Law Institute Approach to this: requires both substantive and procedural fairness (but with diff def. than those above)

i. Procedural: procedural fairness as informed consent and disclosure—rebuttal presumption of this if (see conditions on p. 6 of O)

ii. Substantive: court must undertake review to see whether enforcement would work “substantial injustice” based on passage of time, presence of children, or changed circumstances that were unanticipated and would have a significant impact on the parties of their children.