Family Law

Family Law

regulation of family, children, and marriage – but also about the regulation of sex. Consequences and responsibilities of reproduction

Liberty

freedom to exist, to navigate away from the regulatory arms of the state, as long as that person harms no one else. Protection within the public sphere

Due Process

Liberty - the right to be left alone with no state intervention.

Values that are so important and inviolable that they can’t be infringed on by the government.

—> marriage, right to have children, bodily integrity, privacy

Equal Protection

Equal Treatment

5 Central Tenets of Family

Marital privilege, private ordering, deference to the legislature, majority rules, enforcement

Marital Privacy

Keeps states out of the lives of individual people when the state doesn’t belong there. Language of privacy does not exist in the constitution

Griswold v. CT

Established a right to privacy for married people… can’t force women to have children. It is an overstep into family life

Penumbras

guarantees found in the bill of rights. Unenumerated situations can be gleaned from existing situations.

First - right of association

third - prohibition of quartering soldiers

fourth - protection against unreasonable searches and seizures

fifth - protection against self-incrimination

ninth - rights not listed in the BOR are still protected

Substantive due process

invokes fundamental right - marriage and reproduction

Eisenstadt v. Baird

State was trying to legislate morality, fear that state would have to spend money on children that are raised by unmarried people.

Equal protection claim: married people v. unmarried people

Guaranteed everyone’s right to BC

Strict Scrutiny

Necessary and compelling

burden: state

Classification: race, national origin

Intermediate Scrutiny

Substantial, Important

Burden: state

Classification: gender, legitimacy

Rational Basis

Rationally related to a legitimate state interest

Burden: plaintiff

Classification: everything else

Lawrence v. Texas

The right to sexual privacy isn’t just the right to have sex, but the right to be left alone in a relationship without fear of reprisal for simply being who you are

• stare decisis: stand by things decided (Court overturned Bowers)

• fundamental rights protection issues

• Case is about bodily integrity and one’s own choices (not sexual freedom)

Impediments

legally prohibited forms of marriage. Since it is invalid, there was never a marriage there to begin with.

ex: in NY you can marry your first cousin, but can’t in other states

Annulment

state doesn’t recognize the marriage, declared invalid because of impediment to marriage. Invalidates the marriage contract

Common Law Marriage

performance, reputational kind of relationship

Two requirements for annulment

• must be invalid at the moment people want to annul the marriage

  • could also be something newly discovered - Vanderbilt marriage

• statute of limitations

what is marriage to the state?

state’s confirmation and bestowing of legitimacy, status, and benefits on appropriate couplings

Two basic requirements for marriage

• license

  • valid for a certain period of time before it expires (1 month)

• solemnization (ceremony)

  • must be performed by a state authorized official

  • don’t need consummation today

most states require a waiting period between licensure and solemnization

Provisionally married

they exercise all of the procedures in good faith

• you don’t get the license before solemnization, but go to get it Monday morning

• maybe their officiant wasn’t legit but they thought he was

• error with the license

5 main impediments to marriage

Age, Incest, Consent, Physical Dysfunction, Bigamy

Age

Nonage: absence of requried age

majority rule: parties under 14 cannot get married, parties over 18 can. Between 14 and 18, must have parental/guardian approval

Minority rule: Court can intervene if the child is between 14 and 18.

Consanguinity and affinity

Consanguinity: relationship by blood.

• some states allow you to marry your first counsin

Affinity: marriage between relatives but by marriage, not blood

• in minority of states, affinity marriages are prohibited

Void marriage

One that is invalid from inception (void ab initio)

Either party or a third party may challenge the validity of the marriage at any time and in any proceeding.

Defects: Bigamous, incestuous unions

Bigamy

being married to two people… presently married people are incapable of being entered into another marriage.

• includes this happening accidentally and purposefully

• must legally end the first marriage - can’t ghost a marriage!

• latest marriage will be validated when:

  • removal of impediment

  • couple continues to live together

  • subsequent marriage was made in good faith

Voidable marriage

valid until subsequently declared invalid

• can be asserted only by the one aggrieved party and only during the marriage

• can’t be collaterally attacked in a related proceeding

• defect: age, physical disfunction, consent

Ratification

When there’s a defect in the marriage, it must be acted upon within a reasonable time… usually 2 years.

ex: person gets married at 16 and chooses to stay in the marriage until they’re 18.

Age common law - getting married as a minor

requires parental consent and judicial authorization

Age UMDA - getting married as a minor

minor may marry with either parent’s consent or after a finding that the minor is capable of assuming the responsibilities of marriage and that the marriage would be in his or her best interest

In Re Adoption of M

Adoptive parents adopted “M,” later adoptive father and M had a child. Court vacated the adoption by doing a best interest of the child analysis. Extraordinary circumstance… baby was already born

Reasons to prohibit incest

promote gene diversity

discourage underage marriage

protect children

expand families

Kirkpatrick v. District Court

Daughter age 15 wanted to marry her 48 year old guitar teacher. Traveled to Nevada, which allowed minor to marry based on one parent’s consent. Her father was pissed because mom consented. Court held that parental rights aren’t violated when one parent consents to an underage marriage.

Loving v. Virginia

THE fundamental right to marriage case.

State’s interest was racial purity, but court said violates equal protection and due process clause… marriage is one of the basic civil rights of man.

Uniform Marriage Evasion Act (UMEA) - Uniform Marriage and Divorce Act

1. Declared void all marriages of parties who married in another state for the purpose of evading home state restrictions

2. Allowed out of state residents to marry only if their marriage would be permissible in their home state

3. Required state officers to obtain proof that out of state applicants would be permitted to marry in their home state

4. Provided misdemeanor liability for violations

• Superseded by the Uniform Marriage and Divorce Act - required that states recognize marriages deemed valid either at the place of celebration or the parties' domicile

Federal protection for interracial marriages: Respect for Marriage Act (RFMA)

Requires the fed gov to recognize the validity Of interracial marriages (as well as lesbian, gay, bisexual, and transgender marriages) conducted in states where these marriages are legal

Zablocki v. Redhail

Statute was deemed to be unconstitutional - needed state’s approval if you weren’t paying child support

Equal protection and effective tailoring - don’t use a bug bomb when you only need a fly swatter

Right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly tailored to the accomplishment of an important governmental purpose.

Turner v. Safley

Prisoners retain a constitutional right to marry, even when incarcerated

Physical Incapacity

Incurable inability to perform sexual intercourse can be impediment to marriage

Comity

marriages are valid where they are performed - lex loci - law of the location. must be recognized by other states.

But, states have the power to not recognize marriages they deem “against the public policy of the home state”

Common Law marriage

An equitable remedy in the absence of a legal marriage

Why would someone want to be common law married?

they want a proper divorce (alimony, property division), death benefits, pension, retirement plan

Four requirements for common law marriage

Capacity (legal ability to get married)

Cohabitation (live together)

Present intent (idea of being married NOW)

holding out to the community (smug married couple)

• Most states don’t have common law marriage, but they will recognize marriages from other states that do

Windsor v. US

the state, not the federal government, determines Domestic Relations Matters

Obergefell

There is a fundamental right to marry - prohibiting gay marriage violates both due process and equal protection.

Brown v. Buhlman (vacated)

briefly suggested that states cannot criminalize private plural cohabitation merely because the adults hold themselves out as married, but that ruling was vacated as moot. Therefore, it is not binding precedent, and it does not establish a constitutional right to plural marriage. States may still prohibit legal polygamy.

Jennings v. Hurt

 there must be a mutual meeting of the minds and capacity to get married, and there must be community opinion of that couple to be married. There is no period of cohabitation required.

Creative v. Elenis

• Facts: gay wedding websites

• Doctrinal: protected speech over public accommodation…. When a state public accommodations law and the Constitution collide, there can be no question which must prevail.

Abortion rights speech

protected speech

refusing to sell cupcakes

discrimination

blue line tattoo and artist refusing

protected speech

Satanist photographer

protected speech

refusing to photograph interracial marriages

discrimination - higher level of scrutiny

Jewish Cartographer refusing to make invitations for white brotherhood

protected speech… this is creative expression and it would be compelling speech

Carbaretta v. Carbaretta

Husband and wife married in a church, but they never got their marriage license. The wife wanted a divorce but husband argued their marriage was void. Court said they were married, interest in making sure people are married when they want to be married. Further, marriage would be voidable rather than void.

Unmarried equality

right of one of the parties to the partnership to be given the same privileges and protections as a spouse

Braschi v. Stahl Associate Co.

Stahl said Brasci wasn’t a family member, but he had been living with his partner for 10 years and contributing to rent, his name just wasn’t on the lease.

Court said family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. State adopted functional definition of family.

• families knew of their relationship

• attended family functions as a couple

• had joint checking accounts and credit cards

• Braschi had power of attorney for anything having to do with his partner

• Braschi was beneficiary of Blanchard’s life insurance policy and executor of his estate

In re guardianship of Kowalski

Functional family model

it’s not the court’s role to accommodate one side’s threatened intransigence, where to do so would deprive the ward of an otherwise suitable and preferred guardian

Marvin v. Marvin - enforceable support agreements

Compare with Blumenthal

an unmarried cohabitant can enforce an agreement to share property or provide financial support after the relationship ends. permits recovery based on express agreements, and in the absence thereof, implied-in-fact and implied-in-law agreements

takeaway:

• Permits recovery on express and implied cohabitation agreements.

• These agreements can be implied through conduct.

  • offer: Lee Marvin says he’ll support her for the rest of his life

  • acceptance: she says yes

  • consideration: she’s doing everything for him

    • consideration must be something other than sex

enforceable support agreements - palimony

If we have one person who is demonstrating support for another outside of the marriage and they keep on with the support, as long as they’re in a relationship with that person (more than sex), that is enforceable

Blumenthal v. Brewer

Compare with Marvin

Same sex judge couldn’t claim property in marriage like relationship

Illinois does not permit common law marriage under any circumstance - non-marital couples can’t claim the benefit of marriage.

But remember, they literally couldn’t get married because this was pre-Obergefell and courts won’t apply Obergefell retroactively.

Status based approach for cohabitation

treats unmarried cohabitants like spouses for purposes of distributing property accumulated during the relationship

Washington State applies the committed intimate relationship doctrine

if the couple is found to be in a committed intimate relationship, they are treated similarly to married spouses for purposes of property division at dissolution and at death

• continuous cohabitation

• duration of the relationship

• purpose of the relationship

• pooling of resources and services for joint projects

• intent of the parties

ALI on cohabitation

 if the parties are in a domestic partnership, they are entitled to the same property division and spousal support rights as married spouses

Uniform Cohabitant’s Economic Remedies Act

Allows people who are not married to get economic relief