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Family Law
WMU-Cooley Law School
Cunningham, Janice K.

Family Law Outline
Professor Cunningham
Trinity 2005
 
c. The child support payment
The Laws of Marriage
Common Law Marriage
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New Hampshire recognizes it for inheritance purposes onlyAlabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Texas, Utah, Rhode Island, District of Columbia, South Carolina, and Pennsylvania
j. Any state will recognize a valid common-law marriage because of the FFC clause
k. There is no time requirement
l. The issues of voluntaries and agreement become the big deal here
m. People who are common-law married will hold themselves out to the community both financially and socially to agree that they are married
n. What do the courts look at? Cohabitation, last names, calling each other “wife” and “husband”, filing taxes, insurance coverage
o. Did they mutually agree to be married???? This is the big question
p. Case Law – Looks at where did you first enter into the relationship and did you do anything differently while you were in that state that recognized common law marriage. This prevents couples form going to a state briefly because it recognizes common-law marriage and then holding themselves out to be married.
q. Common law marriage takes intent and a demonstration of that intent
r. There is no such thing as common-law divorce so if you are in a valid common law marriage you can only get out of it by death or by a “real” divorce
s. You allege the common law marriage in the divorce complaint
States which still recognize common law marriage are as followsArose because of all the expansion into the westYou can not circumvent any of the other elements
Annulment
t.
u. There are two defects in marriage
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Usually this happens when dealing with a probate matterThe validity of a marriage can be challenged by third parties as well as the parties to the marriageYou need an annulment so there is a record of the marriage being voidA void marriage is considered to be void from the beginning of the marriageIf it is incestuous then it is void of if there is already a valid existing marriage then a second marriage is automatically voidMakes the marriage automatically voidTaken very seriously by the lawThe only defense is the truthIn this situation the marriage is considered void
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Fraudulently making someone believe somethingKnowing that you are never going to have sex with the personConcealed sterility or impotencyConcealed VDA concealed pregnancyA false allegation of pregnancy
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Defenses are estoppel, the truth, lachesOnly the parties to the marriage can challengeWith voidable marriages there is a time limitAlso, a marriage is voidable if done under undue influence or duressExamples of fraud defectsIn this situation the marriage is considered voidable but not automatically void
The marriage is considered voidable because of contract defects (fraud in the inducement)
v. All jurisdictions have some type of no-fault divorce where you do not really have to prove anything
w. With an annulment you must allege one of the defaults and prove one of the defects with the marriage
x. Nowadays, an annulment is harder to get than a divorce
y. The annulments are commenced in the family division of the circuit court in Michigan and you still must file a complaint.
z. Kids of annulled marriages, even void marriages, are considered legitimate
aa. There are still property settlements, custody, etc.
bb. You do not have to show fault
cc. Law presumes the marriage you see is valid so the BOP is on the person challenging the marriage.
A defect which goes to the capacity of the parties
Divorce
dd. Child SupportThis is a payment that is made by a parent
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If you deviate from the guidelines you must state why you did so.Laws must be reviewed every two yearsThe guidelines must be used by anyone making child support decisionsEach state must have a bureau
xi. STEPS TO DETERMINE CHILD SUPPORT
1.
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The only thing that is not considered income are SS/Disability and welfare
2.
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This can be very difficult to do when the person is self-employed
So you take their gross income and then take away payments, which the person has no control over (taxes, mandatory payments, etc.) and that is their adjusted gross income. This is different than the adjusted gross income for the IRS because the IRS allows for deductions. Child support does not!
3.
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We do not impute income necessarily on stay at home moms if that is the pattern of the familyIf the person has quit a long time ago, then they may just apply minimum wageThe court will look at the income the person had in previous jobs which they quit
If a person has voluntarily or willingly left employment then we will possibly impute income on that person
4.
a.
If there are minor children in any form of paid day care, then there will be an amount determined for the non-custodial parent to pay until the first Friday in September after the child turns 12.
5.
a.
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Shared economic responsibility (not on exam)True joint physical custodyIf one parent is going to have a full time living arrangements
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If you have true joint physical custody you look at the book of guidelines and determine the amount both would pay and then you

get married. (Only TX has addressed this)If you are married and then there is a sex change, the marriage is still validThe Texas courts have said that you define your gender by when you are born what you areCanada recognizes some same-sex marriagesIn all states except for Massachusetts they have to be one man and one woman
v. Capacity
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Full Faith and Credit clause will recognize a valid marriage of first cousins in one state if they move to a state that does not allow it
In MI the rule is no first cousins. Other places do allow itCourt would probably allow adopted or step-siblings to get married but not family members
c.
d.
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Some states require blood tests for the purpose of testing for STDs and AIDSLook to see if they lack the mental capacity to comprehend the contract or nature of the marriage relationshipMust be unmarriedLook at the degree of the relationshipIn MI the age is 18years, 16 years with parental consent
Requirements of capacityCapacity is judged by the day you are married what is your capacity
vi. Statutory Formalities
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The right to intercourseThe right to be supported (physically, financially and emotionally)
Assume the rights and obligations of marriageMarriage certificate is recorded (in MI it is recorded in the health department)In MI there must be two witnessesIn MI it must be either a DC judge, DC magistrate, probate court judge, mayors, in big cities, the clerk, minister of the gospel, etc.Must be performed by someone authorized by the state to perform the ceremonyIn MI there is a three day waiting periodThere is no residency requirement anywhere in the US
vii. Cohabitation
Has all the same requirements as ceremonial marriage except the statutory formalitiesYou need to have a marriage license. In MI you apply at the county clerk where either person lives or in the county they are getting married in.Every single jurisdiction has rules and regulations regarding capacity.There must be two parties and there can only be two partiesThere must be some outward evidence of agreement between the peopleThere can be no forced marriages