Family Law

heart balm torts

alienation of affections, criminal conversation, seduction, breach of promise to marry

alienation of affections

allowing a spouse to sue a third party for intentionally destroying the love and affection in their marriage

criminal conversation

allowing a spouse to sue a third party for having sexual intercourse with their partner during marriage

seduction

man who seduced unmarried woman under false pretenses

breach of promise to marry

allows a partner to sue for damages when a wedding engagement is broken

engagement ring returned to donor if

conditional gift

central question w/r/t engagement ring ownership is whether the gift is __ or ___

conditional, absolute

modern trend makes fault irrelevant w/r/t

engagement ring possession

prenups UPAA

party opposing enforcement must prove agreement was non voluntary or unconscionable when executed, supports a wide latitude regarding prospective spouses' contractual freedom

prenups ALI

premarital agreements must meet standards of procedural fairness (i.e., informed consent and disclosure) + substantive fairness; rebuttable presumption arises that the agreement satisfies the informed consent requirement if (1) it was executed at least 30 days prior to the marriage; (2) both parties had, or were advised to obtain, counsel and had the opportunity to do so; and (3) if one of the parties did not have counsel, the agreement contained understandable information about the parties' rights and the adverse nature of their interests

prenups UPMAA

expressly validates postnups, applies same standards of enforceability to pre and postnups & supersedes UPAA

prenups w/ waivers of spousal support

many states impose restrictions on these provisions, while several other states prohibit them altogether

relevant considerations re: enforceability of pre or post nup.

timing, independent counsel, public policy

void marriage

void marriage

invalid from inception--never had legal existence

voidable marriage

valid until subsequently declared invalid

UPAA prenup impermisible

in violation of public policy or a statute imposing a criminal penalty

__ or ___ may challenge validity of void marriages at ___

either party to the marriage or a third party; at any time in any proceeding

___ may challenge validity of voidable marriages during ___ and cannot be ____ attacked

only 1 of parties; marriage (not after death of 1 party); collaterally

Collier v. Fox

SCOTUS found there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion in Reynolds is almost 140 years ago; still valid, binding authority

Civil restrictions bigamy

limits the ability to contract a second marriage (while a valid first marriage exists) by making such marriages void; such a marriage needs no decree to establish its invalidity

Kirkpatrick v. District Court general holding

well-settled that states have the right and power to establish reasonable limitations on the right to marry; power is justified as an exercise of the police power, which confers upon the states the ability to enact laws to protect the safety, health, morals, and general welfare of society

Kirkpatrick v. District Court found the statute at issue

struck an appropriate balance between an arbitrary rule of age for marriage and accommodation of individual differences and circumstances; consent of both parents is by no means a constitutional requirement for even the most important of decisions regarding minor

Child marriage is defined as any marriage in which one or both of the parties are

under 18 years old

Kirkpatrick substantive DPC constitutional standard/level of scrutiny in family law context

SCOTUS has held that the usual standard for analyzing a substantive due process challenge to the constitutionality of a state statute that impinges on a fundamental constitutional right is whether the statute is narrowly tailored to serve a compelling interest. In family privacy cases involving competing interests within the family, however, the Court has deviated from the usual test; various child rearing and custody cases demonstrate the Court's application of a more flexible "reasonableness" test, which "implicitly calibrates the level of scrutiny in each case to match the particular degree of intrusion upon the parents' interests"

Marriage may be set aside for lack of

consent

___ and ____ vitiates consent & may serve as ground for annulment

fraud; duress

different state requirements w/r/t fraud

strict test for fraud, requiring that misrepresentation go "to the essentials"; requirement that the fraud be material (aka important or vital); inquiry into whether the truth would have been a dealbreaker (Blair)

annulment definition

a declaration that no marriage occurred because some impediment existed at the time of the ceremony

Annulment jurisdiction exists

exists at either party’s domicile, the state of marriage celebrations, or any state with PJ over the spouses

Divorce jurisdiction rests on

domicile

Relation back doctrine

by equitable remedies or statute, states equating the financial consequences of annulment to those of divorce

Relation back doctrine applies only to to

annulment

agreements to marry procured by force, fear, or coercion are

void

agreements to marry procured by force, fear, or coercion are examples of

duress

Carabetta rule

a violation of formality requirements, such as the failure to obtain a marriage license, will not invalidate a marriage; rule operates unless the jurisdiction has a statute expressly making a marriage invalid without a license

States mandate not only a marriage license but also ____by an authorized individual such as ___

solemnization; religious officials, government officials

a proxy marriage is one in which at least one party is

represented at the ceremony by an agent

common law marriage elements

capacity to enter a marital contract. present agreement to be married, cohabitation & holding out as spouses

a valid common law marriage cannot come into existence while a ____ exists for one spouse

prior marriage

Can a couple who are domiciliaries in a non-common law jurisdiction obtain marital status by virtue of residing in another jurisdiction that does recognize common law marriage, and then returning to the non-common law marriage state?

Yes

putative spouse doctrine

recognizes the marriage of an individual who participated in a marriage ceremony in good faith, in the belief that a valid marriage took place and in ignorance of an impediment making the marriage void or voidable (for example, a preexisting marriage); a cure for the harsh consequences of a declaration of invalidity

what's the point of the putative spouse doctrine?

rests on policies favoring validation of marriages and the need to fulfill parties' expectations

Loving v. Virginia holding

restricting freedom to marry solely because of racial classifications violates EPC, also a deprivation of liberty under DPC

scrutiny for racial classifications

strict

Loving was for _ marriage & Obergefell was for __ marriage

interracial; gay

Zablocki holding

right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, critical examination of the state interests advanced is necessary

when statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless

it's supported by sufficiently important state interests & closely tailored to effectuate only those interests

Zablocki involved ___ payments

delinquent child support

Zablocki statute wasn't

narrowly tailored

Obergefell holding

the right to marry is a fundamental right & under DPC & EPC same sex couples may not be deprived of it

Obergefell quote

Respondents contend that petitioners seek a new right to same-sex marriage. They argue that the Due Process Clause safeguards only those fundamental rights and forms of liberty that were specifically protected when the Constitution was ratified.] Yet that approach is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a "right of fathers with unpaid child support duties to marry." Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.

Griswold statute

arrest & conviction & fine arising out of “giving info, instruction, or medical advice to married persons on means of preventing conception”

Griswold recognized for the first time

penumbras of privacy emanating from various amendments

Roe holding & trimester framework

state criminal abortions statute was unconstitutional under DPC; prior to approx. end of 1st trimester, abortion decision & effectuation must be left to the medical judgment of the pregnant woman’s attending physician; stage starting at end of 1st trimester state, in proportion its interest in the health of the mother may, if it chooses regulation abortion procedure in ways reasonably related to maternal health; stages post-viability, state, in promoting its interest in potentiality of human life may if it chooses to regulate and even proscribe abortion except where it is necessary in appropriate medical judgment from the preservation of the life or health of the mother

Eisenstadt QP

Whether there is some ground of difference that rationally explains the different treatment afforded to married and unmarried persons (A: no)

Eisenstadt quote

If the right to privacy means anything, it is the right of the individual married or single to be free form unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child

Eisenstadt statute

law making it a felony for anyone other than a registered physician or pharmacist to dispense any article with the intention that it be used for prevention of contraception; married persons may obtain contraceptives to prevent pregnancy but only from doctors or druggists on prescription; single persons cannot get contraceptives from anyone

Casey holding & framework

·      Although Roe has engendered opposition it isn’t unworkable

·      The line should be drawn at viability so that before that time the woman has the right to choose to terminate her pregnancy; we adhere to this principle for 2 reasons first, stare decisis and second, there is no line other than viability that’s more workable

·      We reject the trimester framework, which we don’t consider part of the essential holding of Roe

·      Not every law that makes a right more difficult to exercise is, ipso facto, an infringement of that right...only where state regulation imposes an undue burden on a woman’s ability to make the decision does the power of the state reach into the heart of the liberty protected by the DPC

·      And a statute which has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends

·      New standard: undue burden; regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden 

Dobbs: ___ and ___ must be overruled; Constitution makes no reference to ____ & no right is implicitly protected by any constitutional provision including ___

Roe; Casey; abortion; DPC

Per Dobbs, the goal of preventing abortion does not constitute _____ against woman

invidious discriminatory animus

Lawrence v. Texas statute

criminal sodomy in home

Lawrence v. Texas QP

Are the petitioners free as adults to engage in private conduct in the exercise of their liberty under DPC? (A: yes)

Lawrence v. Texas quote

there is a realm of personal liberty which government may not enter and Texas statute furthers no legit state interest which can justify its intrusion into the personal & private life of the individual

Meyers v. Nebraska statute

prohibited any person from teaching languages other than English except to students who had successfully completed 8^th grade

Meyers v. Nebraska quotes

mere knowledge of the German language cannot reasonably be regarded as harmful; plaintiffs right to teach and right of parents to engage him so instruct their children are within the liberty of the 14^th amendment; a desirable end cannot be promoted by prohibited means and no emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful to justify its inhibition with the consequent infringement of rights long freely enjoyed

Pierce v. Society of Sisters statute

compulsory education act requiring every parent or guardian of a kid 8-16 yrs old to send the kid to public school in the district where the child resides

Pierce v. Society of Sisters holding & quotes

Under Meyer v. Nebraska, the act unreasonably interferes with the ability of parents and guardians to direct the upbringing and education of children under their control; No general power of the state to standardize its children by forcing them to accept instruction from public teachers only; 14^th amendment guarantees against deprivation of property without due process of the law and the liberty of the parents and guardians to direct the education of children by selecting reputable teachers/schools & appellees schools

noninterference doctrine

courts will ordinarily not intervene in intact marriages

duty of support

spouses have the duty to support each other

doctrine of necessaries

courts intervene to ensure that the earning spouse is responsible for the payment of expenses incurred by the non-earning spouse for those things that are necessary for the family

marital property regimes

common law, community property

under the common law property approach, couple owns all property _____

separately

under the community property approach, couple owns all property _____

jointly

common law approach: during marriage property belongs to the spouse who _____

acquired it

community property approach: each spouse has a present, undivided, one-half interest in all property acquired by the efforts of_____ during the marriage

either spouse

Community property system respects each spouse’s _____such as property that each brought to the marriage.____ also includes property acquired by a spouse during the marriage by means of a gift or inheritance.

separate property; separate property

Although title theory determines ownership & management in common law states during an intact marriage, many common law states permit spouses to opt for ________ in which spouses share the right of control (i.e., neither can alienate or encumber property without the other’s consent)

a tenancy by the entirety

at divorce common law states now follow an ____approach

equitable distribution

equitable distribution attempts to

divide marital property in a fair or equitable manner based on several factor

Most jurisdictions today, by statute or case law, impose a ____ rule for interspousal liability for debts

gender-neutral

SCOTUS 1^st held that sex discrimination violated the EPC in:

Reed v. Reed

SCOTUS 1^st held that the applicable level of scrutiny w/r/t gender-based distinctions isntermediate scrutiny

Craig v. Boren

Domicile

a person’s legal home

Domicile 2 elements:

presence + intent to remain

Case law now recognizes that neither spouse has a paramount right to select ____

the marital domicile

necessaries generally included _____; many American jurisdictions codified the common law duty of support of dependents via so-called family expense statutes, which render _____liable for the support of family members; such statutes are ____ than the common law doctrine (that is, applying to family expenses rather than merely necessaries)

food, clothing, shelter, and medical care; both spouses; broader

Because the state will rarely adjudicate spousal responsibilities in an ongoing marriage, martial support obligations are enforceable only after ____

separation or divorce

Not all states follow Marvin; Illinois is part of a small minority of states purporting to bar all claims between former cohabitants arising out of the parties’ marriage-like but non-marital relationship….other states either ____ or ___

fall someone in middle; some recognize only express & implied agreements, whereas others recognize only express agreements; purport to allow non-marital partners to pursue the full range of contract-based and equitable claims

law of the state of domicile is relevant to (in family law)

determination of marriage validity, award of divorce, custody, adoption, guardianship