Family Law

family law

the law of family relations (marriage and alternatives; divorce; parenthood; obligations); regulation of the formation and dissolution of family as a legal unit

Purposes of family law

protective

facilitative

arbitral

expressive

channeling

Household

for the purposes of food stamp eligibility, a household is a group of related or non-related individuals who live as an economic unit sharing common cooking facilities and for whom food is customarily purchased in common

Moore v. City of East Cleveland

1. Zoning ordinance limits dwelling occupancy to a single family (Ms. Moore lives with her son and two grandsons, who are cousins)

2. A zoning ordinance that prohibits a grandmother from living with her grandchild is unconstitutional 

3. Note: may limit single family homes to people related by “blood, adoption, or marriage” 

4. “In today’s America, the “nuclear family” is the pattern so often found in much of white suburbia. The Constitution cannot be interpreted, however, to tolerate the imposition by the government upon the rest of us of white suburbia’s preference in patterns of family living.”  

Loving v. Virginia

1. Interracial couple charged with violating anti-miscegenation law 

2. Unconstitutional under due process and equal protection 

3. Marriage is

   1. “One of the vital personal rights essential to the orderly pursuit of happiness by free men”

   2. “One of the ‘basic civil rights of man,’ fundamental to our very existence and survival

Zablocki v. Redhail

1. Redhail was denied a marriage license b/c of outstanding child support 

2. Right to marry is fundamental and protected by Due Process – statute here does not survive strict scrutiny 

3. Marriage is 

   1. “Of fundamental importance for all individuals”

   2. “The relationship that is the foundation of the family in our society” 

4. “Reasonable regulations that do not significantly interfere with decision to enter into the marital relationship may legitimately be imposed” 

   1. Examples: age, kinship, venereal disease, bigamy, homosexuality*

Obergefell v. Hodges

1. 4 main reasons why marriage is fundamental and applies to sam-sex couples too (history/tradition)

   1. Right of personal choice/individual autonomy

   2. Intimate association/two person union

   3. Safeguards children and families 

   4. Keystone of social order 

2. Unclear what level of scrutiny was applied 

3. “Just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union”

Dobbs v. Jackson Women’s Health

1. history/tradition is a live issue

2. Majority: the court finds that the right to abortion is not deeply rooted in the nation’s history/tradition

   1. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion 

3. Justice Thomas Concurrence: for that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell

polygamy

marriage to more than one spouse

bigamy

legal marriage to more than one person; entering into a marriage while being married to another person

State v. Holm

1. Holm was living w/ 3 wives (one was Stubbs, a minor)and 20 children 

2. Bigamy laws do not violate the Constitution 

3. Bigamy conviction upheld because statute includes “purports to marry,” it does not matter whether the marriage was state-sanctioned 

4. “The presence or absence of a state license does not alter the bond or the gravity of the commitments made by Holm and Stubbs”

5. State interests – protecting monogamous marriage as a social institution; preventing marriage fraud; protecting vulnerable individuals from exploitation and abuse  

6. Lawrence v Texas “rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship” 

Holm tried to make a Lawrence argument, but the Court rejected it because Stubbs was a minor

polyamory

consensual relationship with more than one person

incestuous marriage

marriage between two people who are within a specified degree of family relationship

Smith v. State

1. State interests: 

   1. economic/political alliances

   2. Protect young family members from exploitation

   3. Reduce likelihood of genetic disorders

   4. Protect domestic peace

Prerequisites to a valid marriage

not barred by state law

valid agreement to marry

genuine intent

satisfaction of formal requirements (marriage license + solemnization)

In re Estate of Santolino

1. Sister of deceased husband claims marriage is terminated by death b/c her brother did not have the mental capacity to consent 

2. He was in bad health when they got married 

3. Court holds he did not have the capacity to consent – marriage void (this is the minority approach, in most states it would be voidable)

Common law marriage

Even if two people do not meet the 3 formal requirements, they are still married if they meet a specific set of circumstances

common law marriage requires clear and convincing evidence of

capacity

mutual assent/present agreement to marry

holding out as married/cohabitation

In re Estate of Hunsaker

1. The parties were competent, the engagement ring showed assent and they lived together and held themselves out to be married

2. Type of evidence is usually circumstantial 

3. Mutual assent implied from actions 

4. Standard of proof is clear and convincing evidence

putative spouse doctrine

equitable remedy for a spouse who relies on a good faith, but mistaken belief, in the validity of the marriage 

Williams v. Williams

1. Nevada adopts putative spouse doctrine 

2. Marcie and Richard were married for 27 years, Marcie thought she was divorced from her first husband 

3. (1) a proper marriage ceremony was performed (2) one or both parties had a good faith belief that there was no impediment and the marriage was proper 

   1. Ends when one spouse learns of impediment 

4. Court concluded both parties believed they were married

Other alternatives to marriage

domestic partnerships

civil unions

designated beneficiaries

McGuire v. McGuire

1. Lydia brought action against husband to recover support money

2. Husband has a duty to provide his family with support, based on his means 

3. Action dismissed because the type of support she requested requires they be living apart

The Doctrine of Necessaries

let a wife buy necessities using her husband’s credit and let creditors sue husband if he refused to pay

divorce

legal termination of a valid marriage

5 ways to terminate a marriage

annulment

fault divorce

no-fault divorce

separation

covenant marriage

simple divorce

Grounds for fault-based divorce

desertion

cruelty

adultery

imprisonment

indignities

Das v. Das

1. Wife who had DV protective order sought divorce – husband says his conduct was not egregious enough 

2. Court looks at kind of cruelty and extent of it 

3. Hard for courts to determine what counts as emotional cruelty

Mick-Skaggs v. Skaggs

1. Wife was denied fault-based divorce based on husband’s adultery

2. Husband counterclaimed w/ texts showing the wife’s adultery

Defenses to fault-based divorce

recrimination

connivance

provocation

collusion

condonation

In Re Marriage of Hightower

1. Court denied wife divorce because of condonation 

2. Wife forgave husband for affair – they kept living together (not out of necessity) and having sex 

3. Court looks for expressions of forgiveness, cohabitation, continuation of sex

2 requirements for no fault divorce

irretrievable breakdown

living separate and apart

Richter v. Richter

1. Husband contested divorce, said there was no irretrievable breakdown 

2. It is pretty easy to satisfy irretrievable breakdown – only need one spouse’s testimony that they will not reconcile because it takes two to reconcile 

Frey v. Frey

1. Wife contested divorce because they were not living separate and apart (husband ate meals with them, went to dinner/movies, etc.) 

2. Husband said he only ate meals/spent time with them for his daughter

3. Isolated attempts at reconciliation do not begin running anew of marital relationship

legal separation

legally binding contract that sets up guidelines spouses will follow

community property

1. Spouses own property acquired during the marriage jointly, except what they agree to hold separately 

2. Creditor can collect debts of either spouse from the community property 

3. Some states distinguish between community and separate debts

common law

1. Spouses own property separately, except what they agree to hold jointly (by gift or joint title)

2. Creditor can reach property of debtor

3. Depending on state statute, can reach ½ property owned jointly 

4. Cannot reach property owned as tenants by the entirety

marital property

1. Acquired during marriage – presumptively joint 

2. Ex: artwork – look at whether owner intended to donate it to the marriage 

Hard to determine – “come look at our painting” v. “come look at my painting”

Kitchen sink regimes

divide ALL property at divorce

separate property

Brought into

inheritance (during)

gift (during)

hybrid property

1. Property that is partly separate and partly marital 

2. Most regimes do not allow it

transmutation

1. Change in the characterization of an asset (e.g. separate to marital; marital to separate)

2. Can happen by title, gift, or use

3. Special rule for homes

Commingling

1. Separate property becomes inextricably combined with marital property 

2. Most states allow “tracing out” of separate property from commingled assets

Nack v. Edwards-Nack

1. Husband wanted court to trace out his money from Legg Mason account – court said they were too inextricably intertwined, so account was marital 

2. Mercedes – even though wife used it, VA defers to title and the title was in husband’s name – separate (title is usually not dispositive)

Appreciation of assets

1. Majority 

   1. Active v. Passive 

      1. Passive – separate 

      2. Active – marital 

         1. If actions are by non-owning spouse 

         2. Some states (including NC) say it can be actions of either spouse 

   2. Efforts of non-owning v. either spouse 

2. Minority 

   1. Always separate 

   2. Always marital

Middendorf v. Middendorf

1. Hogstock yard was husband’s before marriage 

2. Husband says his appreciable work was passive – Court disagrees  

3. The appreciation in Ohio can be by either spouse – hogstock yard is marital

Valuation of assets

1. How much is it worth?

2. How?

   1. Stipulation 

   2. Experts 

      1. Appraisal if something is hard to value (present or projected value of company) 

3. When? 

   1. Date of separation

   2. Date of filing complaint 

   3. Date of trial 

   4. Date of final decree

   5. Judicial discretion

Distribution of assets regimes

equal divison

equitable division

presumption of equal unless inequitable

Ketterle v. Ketterle

1. Court gave wife higher proportion of assets because of husband’s Nobel Prize

2. Wife made a lot of sacrifices so husband could build up his future earning

debts

1. Benefit to household – marital 

2. Benefit to one spouse – separate

Purvis v. Purvis

1. Student loans were taken out in the husband's name, but the wife filled out forms, etc.  

2. Trial court said they are marital property – wife disagreed

3. For debt to be marital – must be for joint benefit and before separation

premarital agreements

voluntary

informed

fair

Mullen v. Mullen

1. Husband had $8 million, wife had $10k + a HS education 

2. Court holds agreement was not unconscionable 

3. An unconscionable contract is one abhorrent to good morals and conscience…where one of the parties takes a fraudulent advantage of another, an agreement no sane person not acting under a delusion would make and that no honest person would take advantage of

In Re Estate of Hollett

1. Husband was 52, wife was 22 and didn’t finish HS 

2. Unfavorable prenup 

3. Her bargaining position was vastly inferior 

4. Counsel alone does not prove voluntariness

alimony

or spousal support, refers to the obligation of an individual to provide their spouse with financial support after separation or divorce in accordance with a settlement agreement or a court decision

types of alimony

permanent

rehabilitative alimony

limited duration alimony

reimbursement alimony

Parisien v. Parisien

1. Husband + wife divorced because of cruelty, adultery, misconduct 

2. Wife was awarded indefinite alimony because her earning capacity would not increase 

3. Factors: ages of parties; earning ability; duration of marriage;; conduct during marriage; station in life; circumstances/need of each; health and physical condition; financial circumstances; other relevant matters; needs of spouse seeking support; supporting spouse’s needs and ability to pay 

4. Trial court decision was not clearly erroneous

Young v. Young

1. Wife was awarded 33% of husband’s income, to be adjusted as his income changed 

2. Court holds that wife is only entitled to the standard of living at the time of divorce (if other spouse has the means), not the future increases – remanded to be reevaluated

Martindale v. Martindale

1. Wife’s rehabilitative alimony was extended until youngest child graduated from HS

2. Wife worked part time to be available for kids/ help the two w/ learning disabilities, husband made over 400k by the time she requested a modification

termination of alimony

death

marriage

cohabitation

marital presumption

1. child born to married woman = husband’s child

Filius Nullius

1. Child of unmarried parents = no parents

Stanley v. Illinois

1. Bio relationship = right to process

2. Right to a hearing but not necessarily substantive right to parenthood

Quillion v. Walcott (

1. Bio relationship + responsibilities = substantive rights 

2. Unwed father did NOT qualify

Caban v. Mohammed

1. Bio relationship + responsibilities = substantive rights 

2. Bio father DID qualify

Lehr v. Robertson

1. Bio relationship + NO responsibilities = no right to process

2. True even though mother hid from bio father

Biology plus standard

1. Mothers: biology sufficient 

2. Fathers: biology + affirmative care/support of child

   1. What care/support counts?

   2. What if father didn’t know?

   3. What if the mother is married?

Michael H. v. Gerald D

1. Carol was married to Gerald, had an adulterous child with Michael 

2. Michael moved for and was denied parenthood (Court says Michael’s right to parenthood is not rooted in history/tradition)

3. Daughter argued she has a liberty interest in a relationship w/ both fathers – argument failed 

4. “Where, however, the child is born into an extant marital family, the natural father’s unique opportunity conflicts with the similarly unique opportunity of the husband of marriage; and it is not unconstitutional for the State to give categorical preference to the latter.”

functional parenthood

Parenthood beyond marriage and biology

UPA Functional Parent Requirements

1. Living with child 

2. Residence during first two years of child’s life 

3. Openly hold out

Common law 4-factor test for functional parenthood

1. Legal parent consented & fostered relationship 

2. Cohabitation 

3. Assumed obligations of parenthood without expectation of financial compensation 

4. Sufficient time to develop a bonded, dependent parental relationship

Troxel v. Granville

1. Petitioners were grandparents of deceased father of 2 daughters – lower court entered visitation order, reversed because this infringed on the mom’s parental rights 

2. Constitutional considerations: constitutional right to care, custody and control of your children; presumed to make decisions in the best interest of your children 

3. “The due process clause does not permit a state to infringe on the fundamental right of parents to make childrearing decision simply because a state judge believes a ‘better’ decision could be made”

4. Courts have to balance constitutional rights of parents and risk posed to child 

   1. Some limit visitation to grandparents

   2. Most states allow any relative to petition for visitation (majority approach)

   3. Some states expand petition rights to others with a substantial relationship with the child

   4. Test: balancing parents’ wishes with the risk of harm to the child

      1. Harm = rupturing a continuous relationship that the child had with their parent

   5. Applies to all third party visitation petitions

5. Kennedy’s dissent: 

   1. Parenting is a spectrum; lots of people develop parent-like relationships with children

      1. Includes extended family, close family friends, nannies/babysitters

ART

1. ART: Assistive Reproductive Technology 

   1. Sperm donation 

   2. Egg donation

   3. In vitro fertilization (IVF)

   4. Gestational surrogacy

Cook v. Harding

1. Surrogate refused to reduce triplet pregnancy at man’s request

2. This case implicates a lot of concerns about ART – like what the parties can contract around 

   1. 75 page contract; both represented by counsel 

   2. Problem started one month after the pregnancy 

   3. Common practice to implant multiple embryos 

   4. Contract contained a selective reduction clause 

   5. Cook had anti-abortion beliefs – signed the selective reduction clause because she needed the money 

   6. CM could not force her to have an abortion – there is a Constitutional right to not have an abortion

   7. As legal parent, CM has the right to put the child up for adoption

Types of adoption

independent

private agencies

public agencies

international

foster care

1.  temporary home while awaiting reunification or permanent option 

   1. Foster parents sometimes adopt their foster kids (after original parental rights have been severed)

2-step process for adoption

termination of parental rights (voluntary or involuntary)

creation of new parent-child relationship

Adoption of Ilona

1. Ilona’s parents were found to be unfit and forced to relinquish custody 

2. But she was close w/ her mom so the judge said they could remain in contact but decision making was up to adoptive parents 

3. Mother said the court should have ordered visitation 

4. (1) is visitation in the child’s best interest? (2) is a visitation order necessary to protect those interests?

cohabitation

1. the fact or state of living together, as partners in life, with the suggestion of sexual relations

   1. Historically – no alternative status; contractual and equitable remedies barred 

   2. Majority (including North Carolina) – no alternative status BUT contractual and equitable remedies allowed 

   3. Minority – alternative status AND contractual equitable remedies; OR no rights

palimony

support rights from cohabitation 

causes of action or unmarried coinhabitants

contract

trust

quantum meruit

Marvin v. Marvin

1. Parties entered into an agreement to live together, combine efforts and share profits 

2. Man ultimately made her move out, supported her for a year and then stopped 

3. Woman wanted contract rights + half of property via trust 

4. Man argued the contract was for sexual services (meretricious) and thus unenforceable

   1. Court holds that this part was severable – says woman is entitled to value of services rendered

Blumenthal v. Brewer

1. Blumenthal and Brewer shared home and raised a family 

2. After they broke up – Blumenthal wanted home and and  Brewer wanted stake in Blumenthal’s medical business

3. Court decides based on Hewitt (a case that did not recognize same-sex cohabitant rights) 

4. Court refuses to address as a pure contract claim because it disrupts the institution of marriage

Who is obligated to pay child support?

1. Biological parents 

   1. From time of birth (majority)

   2. No retroactive responsibility if inequitable (minority) 

2. Non-biological legal parents 

   1. From time legal relationship created 

3. Stepparents 

   1. No obligation (majority)

   2. Obligation if live with child, but ends upon divorce (minority)

4. Grandparents 

   1. No obligation (majority)

   2. Obligation if minor child is the parent, but ends when child is emancipated or turns 18 (minority)

5. Functional parents 

   1. Depends on the State

3 models of child support calculation

income shares model

percentge of income model

Melson formula

low income obligors

1. No obligation if income is limited to public assistance (North Carolina approach)

2. Obligations reduced based on judge’s discretion 

3. Rebuttable presumption of lowest guidelines amount

4. Obligation set at minimum amount

State Ex. Rel. Hermesmann v. Seyer

1. Colleen (17) had baby of her babysitting charge (13) 

2. SRS filed a petition to have Shane reimburse them for Colleen + baby’s expenses

3. Shane ordered to pay $50 per month in child support, regardless of consent 

4. Interests of the daughter are superior