I. The Law of Marriage
a. Treated in our legal system as a contract
b. Gives marriage a status in the eyes of our law
c. Marriage has this connotation because two people make up the marriage.
d. In addition to being a contract, has religious significance
e. Definition of marriage
i. Right to marry is a fundamental right (Griswold v Connecticut)
ii. Cannot deny right to marry because of race or age
f. There is state power in regards to marriage
i. Each state has some differences but they all have rules that govern marriage
g. Eight elements to marriage:
1. Need to have both husband and wife getting married
2. No arranged or promised marriage
1. No shotgun marriages
2. Have to both enter into in on their own means
iii. Need outward evidence of the agreement to marry
1. Extremely important= becomes key for common law marriage
2. Ex: Invitations, marriage licenses
iv. Must be two parties to a marriage
1. Can only be two parties to a marriage
a. Polygamists= not valid marriage
b. First marriage is the only one that counts
2. Two parties 1 Male, 1 Female
a. Exceptions: Massachusetts and Canada
b. Becomes hazy with Full Faith and Credit
c. Defensive Marriage Act
3. Look at the gender that you are on the day of marriage
a. Texas says it is what you are when you are born
1. Differences among jurisdictions
2. Age- most say 18 without parental consent
3. Can marry in MI at 16 with parental consent
4. Some say 15 or 14 (females TN) with parental consent
5. Degree of relationship- cannot marry father, son of husband…
a. Step siblings? – Courts will probably allow it
b. Most of the time if there is no biological relationship- courts will say ok
c. MI- no first cousins: some do!
d. Is recognized in MI, if you do in a state where it allowed.
6. Cannot be married already- to have capacity
7. Mental capacity- need to comprehend the contract and nature of the relationship
a. Court looks at the day that you get married to determine mental capacity
8. Blood tests for STD’S- Some courts require before marriage; now they allow it becomes times have changed.
vi. Statutory Formalities
1. Need a license- apply at county clerk; any place where they are getting married or where they are from
2. No residency requirement
3. Three day waiting period (In Michigan)
4. Marriage must be performed by someone who is licensed to by the state to marry them
5. Assume the obligations of marriage
a. The right to be support one another
6. Following people are authorized
a. District court judges (within district)
b. District court magistrates
c. Probate court judges
e. County clerk
f. Gospel of religions
7. Need two witnesses of the marriage
8. Recorded- for reasons (Health Department in MI)
9. FL and NV-One witnesses
II. Common Law Marriage
a. Grew out of expansion of the west
b. Has all of the same requirements of a ceremonial marriages, except adherence to the statutory requirements
c. Cannot circumvent any of the other factors
d. States that recognize common law marriage
e. AL, CO, IA, District of Columbia, RL, MT, PN, KA, OK, TX, UT
f. Ringers- shouldn’t but do.
i. Penn, SC, RI, DC
ii. NH -àinheritance
g. Any state will recognize it through Full Faith and Credit
h. There is no time requirement for common law marriages
i. Concept of agreement becomes very important in common law marriage
i. A couple who have chosen to engage in a common law marriage, they will hold themselves out in an economic and social way to society.
j. What did the couple do to indicate to society that they mutually agreed to be married?
k. Need the intent to be married and a demonstration of it.
l. No such thing as common law divorce
i. Only way to get out of a common law marriage is divorce or spouse dies
m. If you file a complaint alleging a valid common law marriage, then you allege that in your complaint for divorce.
a. Finding by the court that the marriage never existed.
b. Two categories of defects in marriage
i. Those that go to the capacity of the parties
1. Automatically will render marriage void.
2. Incestuous marriage-by definition of your jurisdictions
3. Third parties can challenge
ii. That go into the contractual part of the marriage (voidable marriages)
1. Fraud by inducement-
a. False allegation by pregnancy
b. Concealed pregnancy
c. Concealed venereal disease
d. Concealed sterility or impotency
e. Enter into marriage never intending on having sex
2. Force or duress into marriage
3. There is a time limit with voidable marriage (Reasonable period of time)
a. Like a contractàthere are defenses
i. Laches= sitting on your rights
4. Third parties cannot challenge these
c. Any of these two defects are considered void from the beginning.
d. Certain things that are true about challenging them:
i. Validity of a void marriage can be challenged by a third parties as well as with the parties to the marriage
ii. Right to challenge survives the death
iii. Comes in the form of a Probate case.
e. All jurisdictions for divorce, you just have to prove that you were living apart
f. For annulment=You must allege one of the two categories to get it.
g. Commenced in the circuit court by a complaint
h. If there are children, they are legitimate
i. Property? There is going to be a division
j. Will not see any issue if fault…
k. Law presumes that the marriage you see is the valid marriage—BOP is on the one challenging
IV. Divorce: Child Support
a. A payment that is made from a parent to the other for the benefit of children
b. Law also looks at what the custodial parent provides as well.
c. If there are minor children in a divorce case or any other case, there will be child support
d. Minor children are entitled to know support from both parents.
e. If you have a married couple, then the law looks at it that both parents are providing as necessary and able
f. If you are the custodial parent, you are providing support for children as well.
g. Money support comes from non-custodial because they are not present
h. Even if the child is a movie star child, they are still entitled to child support
i. Children never have the obligation to support themselves
j. Used to
i. Make determination of children’s needs
ii. Then decide what the parents have to offer
k. It is now:
i. Looking at what is available for support
ii. Then applying it (no longer look at child’s needs)
l. No federal jurisdiction for this
i. But they are involved because this is a federal regulation, and since no states had any methods to implement child
ii. Goal: if there is a child support order, to make sure that it is paid, whether to custodial parent, or government official.
iii. Three means to enforcement FEDERAL MANDATE
1. INCOME WITHHOLDING= every child support order must have language in the order that triggers income withholding. (If there is a child support order, a supplement order should be given to the income provider that says that a portion needs to go to a central collection agency, where it is directed to the friend of the court to be dispersed
a. Identifying information that could lead to the source of income (Ex: social security number, type of income that it is)
b. Problems with this: working under the table, or owning their own business, person changing jobs, or does not work
2. TAX INTERCEPT= If the enforcing agency interacts with the IRS computer notifies that the parent owes more than $300.00. Then the government sends a notice to the parent saying that any tax refunds will be garnished.
a. Says you do have the right to a hearing but can only raise two issues.
i. “You have the wrong person”
ii. “I do not owe the money”
b. Problems: not filing, not working, not getting any return, under-reporting. Filing a joint tax with an innocent spouse, so they need to file separately through an innocent spouse.
3. COURT INVOLVEMENT= making sure the child support obligation is paidà use of courts civil contempt’s powers
a. Lawyer files a petition to show causeà against the parent that has not paid child support
b. Signed by petitioner, attorney, and enforcing agency
c. Presumption that anybody can come up with 25% of support for their child.
d. She has to appear before the magistrate
e. Magistrate will listen to why the money cannot be paid.
f. Look at the individuals lifestyle
g. Court must make a finding that there is a judgment of divorce, arrearage, and that they can comply with the payments, the court can hold her into contempt up to
i. 30 days for the first time
ii. 90 for the second and beyond
h. However, said that those in contempt “have the keys to their cell”
i. Therefore, they can pay what they need to, to get out
i. Civil and Criminal contempt= Criminal is automatically given without testimony
y. Other ways to enforce child support
i. Attach real or personal property
1. Problem= you still have to sell the property
ii. Attaching professional licenses
1. Send order to the appropriate associations= then they will be suspended.
z. Other stuff about child support
i. No dischargeable in bankruptcy; neither is alimony