Family Law Week 5

expressio unis

in statutory construction, the thing expressed is to the exclusion of things not expressed

pre-MWPA

• coverture, women’s identity subsumed into husband’s

• wife cannot contract

• to sue wife for torts must sue H and W

• H pays for W’s necessities

• W has no duty for H’s debts

pre-MWPA common law real property

• H possesses and manages W’s RP, if he dies control reverts back

• H cannot sell w/o W’s permission but can sell H’s interest and creditors can attach

• H owns his RP, W gets dower rights (1/2 or 1/3 life estate), creditors can reach his RP except W’s dower rights

pre-MWPA common law personal property

• W’s personal prop (stocks) is H’s unless it is paraphernalia (clothes, jewelry)

• H’s personal prop is his, W has no interest

post MWPA

• H and W can contract

• spouses equally liable for tort recovery

• variation on liability for debts btw states (some equally liable, some remains H’s duty to pay for W’s necessities, some there is no duty)

post MWPA common law real property

• H owns RP unless titled in W’s name or makes gift, reachable by creditors and W loses dower rights

• H owns and manages her RP, H’s creditors cannot reach unless it is a family expense

post MWPA common law personal property

• H owns his W owns hers

• each own earnings, W has not interest in H’s

post MWPA community property

Real Property

• some states each spouse owns H’s property

• others, pre-marital property becomes community prop that both spouses manage and is reachable by creditors

Personal Prop differs by state, but earnings belong to community prop

McGuire v. McGuire

• absent necessity (domestic abuse, child neglect, divorce), state will not intervene in marriage

• as long as house is maintained H is legally supporting W and purpose of marriage is being carried out, necessities are being met

• to maintain the action, the parties must be separated or living apart from each other

doctrine of oneness

family is single living organism not collection of individuals

spousal testimonial privilege

• cannot bar a spouse if they are willing to testify, bc willingness shows disrepair

• only testifying spouse asserts the privilege

• both parties can block each other from testifying about things said btw them during the marriage

when do spousal rights arise

at divorce, until divorce title holder controls property

fault based divorce

one can only divorce other party if that party committed grievous fault in marriage like adultery, habitual drunkenness, or abandonment