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Family Law Outline

History
Family law has undergone a series of revolutions over the past 100 years
A. Women’s Rights
 Formerly: In the context of marriage, a woman was her husband’s property. A
married woman had no legal existence apart from her husband. Therefore, she could
not contract, could not have a residence.
 Over time: Married Women’s Property Acts conferred benefits upon women
 Currently: Women may be equals in theory, but much gender asymmetry still exists
in the context of marriage.
B. Divorce
 Formerly: Divorce was incredibly hard to obtain because you had to get the State
Legislature to pass an act declaring you divorced.
 Over time: Divorce became part of the legal/court system – easier, but not easy,
because could only get a divorce if one party was at fault.
 Currently: Most states have moved from fault-based to no-fault divorce.
C. Same-sex Marriage
 Formerly: Marriage is viewed as a relationship between one woman and one man.
 Currently: This is a very contentious and current issue. Same-sex marriage is a hot
topic that has been resolved differently in various states.
◊ MA, CT – same-sex couples CAN married and are viewed as married.
◊ VT – same-sex couples can get civil unions, which are the functional equivalents
of marriage (get the same benefits, rights and duties), but are not married.
◊ NJ, CA, HI – there is some other type of recognition of same-sex relationships –
i.e. partners, reciprocal beneficiaries

If U.S. Constitution does not have a right, State governments may have it.
If U.S. Constitution has a right, State governments must have it.
14th Amendment: nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
D. DUE PROCESS
 14th Amendment: applies the individual rights of the Bill of Rights to the States
 Procedural
◊ i.e. deprivation of physical liberty, right to be free of unreasonable search and
seizure (4th Am.), right to be free of cruel and unusual punishment (8th Am.), the
right not to incriminate oneself (5th Am.)…
◊ the law cannot be vague
 Substantive due process
◊ Laws cannot be purely arbitrary or unduly trench on people’s fundamental rights.
◊ Examples of fundamental rights: right of privacy, right to marry
◊ How you frame a fundamental right affects judicial decisions as to whether there
is a fundamental right.
• Example: Fundamental right to be free from government interference in
details of family life versus no fundamental right to live in a contiguous
suite of rooms with all of your grandchildren.
• Example: Fundamental right to privacy of sexual relations versus no
fundamental right to engage in sodomy.

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Family Law Outline

E. EQUAL PROTECTION
 14th Amendment: “nor shall any State…deny to any person within its jurisdiction the
equal protection of the laws.”
 State policies that rely on classifications among people such as income, race, gender,
weight, intelligence, citizenship, age, or residency .
 3 ways to approach a question of equal protection:
◊ Rational Basis – Is the classification plausibly related to a legitimate state goal?
The rationale does not have to actually be used by the legislature, there just has to
be a plausible connection or some sort of rational justification for the rule. The
majority of classifications fall here – i.e. age is not a suspect class.
◊ Intermediate or Heightened Scrutiny – used specifically in sex and sexual
orientation cases – classifications by gender must serve important governmental
objectives and must be substantially related to the achievement of those
objectives. Used when statutes openly discriminate on the basis of sex or that
can be shown to be motivated by a discriminatory purpose. Also used when
classifications affect the state’s distribution of fundamental rights.
• For example, classifications based on sex – i.e. women - the court
departs from the rational basis test when evaluating race-based
classifications.
• Issue: should sexual orientation itself be a classification that triggers
heightened scrutiny?
◊ Strict Scrutiny – Court demands something more than a rational basis to support
a statutory classification. Used when statutes are directed at suspect classes. I.E.
race, ethnicity, religion.
• For example, the court departs from the rational basis test when
evaluating race-based classifications.
• If a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to
effectuate only those interests.
______________________________________________________________________________
MARRIAGE

I: The Fundamental Right to Marry


Pace v. Alabama (US 1883):
Facts:
1. White woman and black man lived together in a state of adultery/fornication.
2. They were convicted of violating an Alabama law that made it a crime for a white
person and a black person to live together in adultery/fornication.
3. Alabama also had a law that made it a crime to live together in fornication/adultery,
regardless of race, but the race-classification statute had a harsher punishment for
essentially the same act.
Holding: Equal Protection Claim denied. Conviction was affirmed – no discrimination
because white and black people are being punished equally.
 Punishment for interracial sex is the same regardless of the perpetrator’s race (equal
application).
Naim v. Naim (VA 1955):
Facts:

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Family Law Outline

 White woman and a Chinese man got married in North Carolina to evade VA law
prohibiting interracial marriage.
 Couple lived in VA.
 Wife seeking annulment because illegal to marry interracially in Virginia. White
person can only marry another white person.
 If VA resident goes out of state to marry someone they cannot marry in VA and then
returns to the state, the marriage is VOID.
Holding: Equal Protection Claim denied: Rational Basis standard.
 Marriage is a right, but interracial marriage is not a right
 Anti-Miscegenation was a legitimate purpose- as long as it was for a legitimate
purpose,
it was fine
Loving v. Virginia (US 1967) (C.J. Warren):
Facts:
 Black woman and white man got married in D.C. to evade VA law prohibiting interracial
marriage (same as Naim).
 Couple lived in VA.
Holding: Virginia’s anti-miscegenation law was invalidated on both EP and DP claims!
 It violated the Equal Protection Clause = unsupported race-based classification: a black-
white couple could not marry, whereas a similarly situated black-black or white-white
couple could.
 It also violated Substantive Due Process = statute unjustifiably interfered with citizens’
fundamental right to marry. Effectively overruled Naim v.Naim.
 This case is seen as a victory for the Civil Rights Movement on the Equal
Protection Clause Arguments. However, Part II of the decision (the due process
argument) turns out to be problematic for future cases.
 Equal Protection
• Equal application argument is bullshit
• Court applied strict scrutiny because this is a racial classification
• There is no justifiable governmental objective to support the use of the
classification; white supremacy is not a proper objective.
• Even applying rational basis, there is no legitimate plausible governmental
objective that justifies this law.
• Blatant discrimination
 Due Process
• Fundamental Right Argument: this is a blatant interference with the
fundamental right to marry
o Leaves open the question of what constitutes a legitimate and
justified interference with the fundamental right to marry.

Miscegenation Statutes:
• Equal Protection Argument
o VIOLATION:
 Equal application theory is a crock of shit. The accused people are
subject to a different punishment for the same act because of their race.
If two white people or two black people were similarly situated, there
would be no violation of the second law. (Pace)

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Family Law Outline

• The parties of an interracial fornication are treated differently


than parties to a same-race fornication.
• While there is surface equal application in that they are being
treated the same, White Supremacy undergirds the statute.
• The law is about racial purity for whites, not racial purity for all.
Whites cannot marry blacks and blacks cannot marry whites.
BUT non-whites can intermarry with other non-whites. If the
goal is to prevent interracial breeding and the creation of
mongrel citizens, the law should apply evenly to all races.
 While a racial class of people is not being treated differently, the class of
people that are interracial marry-ers ARE being treated differently.
 A white person is allowed to do something that a black person is not
(have sex with a white person) and a black person is allowed to do
something a white person is not (have sex with a black person). (Pace)
 Brown v. Board of Education – Civil rights movement – recognizes that
classifications on the basis of race are not OK. (Naim). The Naim Court
compares intermarriage to education, but this is faulty logic. Should be
comparing marriage to education and intermarriage to desegregation.
 Laws prohibiting different-race marriage are subject to heightened
scrutiny because they denied marriage licenses based on the race of one
of the partners (Loving).
 No permissible state objective to prohibit interracial marriage - there is
no rational basis – white supremacy is not a legitimate governmental
objective.
o NOT A VIOLATION:
 Equal application of punishment. Neither party is being punished
differently than the other. White persons and black persons are punished
equally. Punishment for interracial sex is the same, regardless of the
perpetrator’s race. There is no invidious racial discrimination.
• No invidious racial discrimination – Neither person, black AND
white, can fornicate with someone of the opposite race. Not
being denied anything.
 Rational Basis Standard - There is a rational basis for the law.
• Science is in doubt as to the effect of the mixing of the races, so
the court should defer to legislature’s judgment.
• Health and welfare of citizens is at risk
• Rational to believe that interracial marriages would create a
mongrel breed of citizens.
• Justification – Distinguish Brown v. Board of Education – while
education is the most important function of the State government
and is the “foundation of good citizenship,” the same cannot be
said for interracial marriage. Interracial marriage is the
antithesis of the foundation of good citizenship; it harms society.
 Under heightened scrutiny – the state has a legitimate, important and
proper governmental objective  the prevention of miscegenetic
marriages. Preservation of the races is the state’s reason for the law, and
it could not be achieved without classifications.

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Family Law Outline

 States Rights – family law is state law; states have the ability to regulate
marriage how they see fit. Constitution was not supposed to be a
limitation on states’ ability to regulate marriage.
• Due Process Argument
o VIOLATION:
 States cannot regulate marriage because it is not sufficiently connected to
health or morals (Naim – California rule in 1955)
o NOT A VIOLATION:
 Marriage is within the State’s sphere of control – it is a States’ rights
question (Naim)

Zablocki v. Redhail (US 1978) (Marshall):


Facts:
 Redhail (P) denied marriage license because owed child support and did not have a court
order granting him permission to marry.
 Redhail (P) contended that a Wisconsin statute that prohibited a person with a child
support obligation from marrying without a prior court order violated equal protection
and due process guarantees.
Holding: A state statute denying a fundamental right to marry must be supported by important
state interests and be closely tailored to effectuate such interests in order to be constitutional.
 Invalidated Wisconsin law preventing remarriage by people in arrears on outstanding
child and spouse support obligations. Applied heightened scrutiny standard – involved
fundamental right.
 Violated Equal Protection (a sub-class of unmarried people are absolutely barred from
marriage). Notwithstanding the worthy state interest (preventing deadbeat parents from
procreating again and having less $ to support all children – protecting unborn future
children and prior children), the Court held that the means were overbroad; there were
other ways of meeting this goal that did not deprive people of a fundamental
constitutional right.
 Part II of Loving should not be interpreted as creating an absolute fundamental right
to marriage – “reasonable regulations that do not significantly interfere with
decisions to enter into the marital relationship may legitimately be imposed.”
 Here – there is a serious intrusion and an unreasonable regulation that has no
justification.
 There are reasonable regulations that may directly and substantially interfere with
the right to marry that we would not strike down; i.e. marriage to a child or to a
close relative
 There were also possible empirical and practical objections to the law:
 Could be marrying someone with money and have better resources
 Could be like discriminating against poor people – poor people can’t marry
because they do not make enough money.
 Zablocki CONCURRENCE (Powell): Majority leaves too many questions
unanswered. What regulations “significantly interfere” with marital relationships?
Of these regulations, which are “reasonable?” Need more guidance on what types of
constraints the States can and cannot place on marriage.
 Zablocki CONCURRENCE (Stewart): Due process argument

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 Zablocki CONCURRENCE (Stevens): Class = rich/poor. The majority reaches the


correct result but it applies a different standard that has no precedential history and
should not be used.
 Zablocki DISSENT (Rehnquist): Should use rational basis theory. The statute is then
a permissible use of State power to regulate family life.
 Keeping in mind the state’s specific interest in assuring the support of
its minor children, this statute has permissibly achieved its goal despite
burdening those few parties operating within unique and extreme
circumstances.
Turner v. Safley (US 1987) (O’Connor – unanimous):
Facts:
 Safley (Prison inmate) sued contending that a regulation (which allowed prison inmates
to marry only under compelling reasons) infringed upon his constitutional right to marry
 Turner (D), on behalf of the state of Missouri, contended its prison regulation severely
restricted inmate marriages was constitutional.
Holding: Missouri law is invalidated.
 Invalidates Missouri law requiring prisoners to obtain prison superintendent permission
before they can get married.
 This is an impermissible restriction on marriage b/c it places an absolute bar to marriage
on prisoners.
 The fundamental right to marry extends to prisoners. Prisoners, although their rights
may be limited in some ways, retain those fundamental rights that are not inconsistent
with their status as prisoners nor with the legitimate penological objectives of the
correctional system.
 There are important attributes to marriage that remain even after you take away those
which imprisonment removes: emotional support, public commitment,
religious/spiritual commitment, will be released eventually, marital status is a pre-
condition to benefits, rights and obligations, legitimates children.
 Applying rational basis: there is no legitimate state interest in this case (paternalistic
to protect imprisoned females from depending on men via marriage), but even if
there was, the statute is not reasonably related to the legitimate security and
rehabilitation concerns (avoiding violence triangles).

Keeney v. Heath (7th Cir. 1995) (Posner):


Facts:
 There was an Indiana law that prohibited prison guards from marrying prisoners.
Holding: Indiana law upheld
 This is a reasonable restriction on marriage. I
 n line with Zablocki – marriage is a fundamental right, but light or moderate restrictions
on marriage are permissible
 . ∏ = female prison guard wanted to marry prisoner – had to choose between her job or
marrying an inmate.
 Applied rational basis standard.
 Legitimate state interest = preventing potential for preferential treatment of prisoners
(even if it doesn’t happen – violence could occur in thinking it did) and safety of guards.
Rule is more like inmates are allowed to marry so long as there is no substantial threat to
public safety, security or institutional order.
 It is permissible because this statute is not a complete prohibition on marriage.

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Family Law Outline

 It is permissible because this is a revocable path. ∏ can do something to remove the


marriage ban – quit her job, whereas a black person cannot change his skin color to
lift the marriage ban.
 It is permissible because states have a LEGITIMATE interest in preventing prison
guard/prisoner relationships. Not present when all prisoners.
 It is permissible because the statute is tailored to meet this, and only this, goal.

Michael H. v. Gerald D (US Supreme Court 1989)


Facts:
 Michael H. (P) and Victoria (P) appealed from a decision upholding a decision granting
summary judgment to Gerald D. (D) terminating his filiation action, contending that the
legislative presumption of paternity in favor of Gerald D. (D) established by the evidence
code was unconstitutional.
Holding:
 The interest established solely by biological parenthood plus an established parental
relationship is not a liberty interest accorded substantive due process protection.

Vaughn v. Lawrenceburg Power Sys. (6th Cir. 2001)


Terminated Employees (P) v. Employer (D)
Facts:
 Keith Vaughn (P) and Jennifer Paige (P) worked for Lawrenceburg Power System (LPS)
(D) and became engaged to be married.
 Their marriage would violate LPS’s (D) anti-nepotism policy, which required the
termination of employment of one employee when two employees married.
 Keith and Jennifer wed, were terminated for different reasons, then challenged LPS’s (D)
policy as unconstitutional.
Holding: An employment rule may permissibly interfere with the First Amendment right to
marital association if it reasonably advances a legitimate government purpose.
 The Vaughn’s claim that the rule should be analyzed under a strict scrutiny standard
failed because the rule does not place a “direct and substantial burden on the right of
marriage.”
 Vaughns were free to marry period as well as free to marry a significant portion of the
otherwise eligible population of spouses
 The rule should be analyzed under rational basis
o The legitimate governmental interests at issue here are the avoidance of a conflict
of loyalty between the employer and the spouse bringing marital strife into the
workplace.
 Anti-Nepotism policy is a reasonable one because LPS (D) is a small
employer and it cannot transfer one of the couple to another location.

How to determine if a statute is a permissible/reasonable exercise of state power:
1) Does the statute create a partial or complete prohibition?
a. If complete – invalid
b. If partial  revocability?
2) Is the situation creating the ban revocable?
a. If yes – valid
b. If no – state interest?
3) Is there a plausible state interest for the prohibition? Use the Rational Basis Approach
OR Heightened Scrutiny Approach if suspicious classification

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a. If yes – valid
b. If no – invalid
4) Is the statute sufficiently tailored to meet only this legitimate purpose?
a. If no (overbroad) – invalid
b. If yes – valid law

**final moral: marriage is a fundamental right. If the State is going to be issuing marriage
licenses, then it is an important individual right for which the State cannot arbitrarily or
inappropriately draw distinctions between who can and cannot get married OR
substantially infringe on the right to marry! But it can impose reasonable regulations on
marriage.

WHAT IS A VALID STATE INTEREST?


• Procreation - there is an historical link between procreation and marriage that undergirds
States’ interests in marriage. The idea was that if you restrict a person’s path to marriage,
you restrict the likelihood that a person will be a parent. However, this rationale holds
less weight in modern times where plenty of people have children out-of-wedlock and
have premarital sex.
• Encourage Families – families are the fabric of society. Marriage is the foundation
upon which society rests and is the basis for the family and all of its benefits.
• Cultural and Moral Norms – want people to develop certain cultural norms.
• Channeling Function – there is also the idea that marriage is beneficial to society and
should be encouraged by the State. The State offers incentives for people to organize
their lives in this way.
o Why is Marriage so good?
 Marriage is a public institution for the public good.
 Marriage is a fundamental right
 Marriage and family life is basic and vital to the permanence of the State
– tradition/culture, furtherance of the physical, moral and spiritual well-
being of its citizens.
 Marriage creates pairs of people who live together, become close,
become economically intertwined, hopefully in the long-term, in a
monogamous mutually beneficial relationship.
 Efficiency - creates economical living situations (econ. of scale)
 Prevents illegitimate children

II What is a Family?
4. Objective/Traditional DEF: Family = a group of individuals related by blood, marriage,
or adoption (a relationship that can be proven by objective legal fact).
5. Functional DEF: Family = a group of people with whom you have a “domestic bond” or
“people you live with.” A group of people who have a “bond that is, in some way, like
that bond traditionally associated with people to whom you are related to by blood,
marriage, or adoption.” Someone with whom you are economically intertwined.
Someone with whom you co-parent.
 Functional definitions represent what families do, but raise issues of proof
6. The answer to the question of “who is family” or “who can marry” will be
different in different contexts. It is a matter of public policy and statutory purpose.

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When considering what kinds of families we want to give certain protections to, we
should look to the functional characteristics of the relationship.
 Examples: Moore v. East Cleveland; Braschi v. Stahl; Dunphy v. Gregor; Baehr v.
Miike
 Look to factors such as:
 Duration of relationship
 Degree of mutual dependence (financial and emotional)
 Extent and quality of shared experiences, daily life
 Members of same household
 Whether they related to each other in attending to life’s mundane requirements.
7. Cases = zoning ordinances that limit residency to specific definitions of family.
 Zoning ordinances are made by police power conferred on municipalities.
Village of Belle Terre v. Boraas (US 1974) (Douglas):
Facts:
 There was a village ordinance restricting land use to one-family dwellings and defining
family as either people related by blood, adoption, or marriage, or 2 unrelated persons,
living and cooking together as a single housekeeping unit.
 Six college students who were living together challenged this statute
Holding: Statute was upheld
 Applies rational basis: Village has rational reasons for limiting # to 2 (tranquility,
reducing cars, less noise, safety).
 Court held 6 college students living together do not satisfy the definition of “family.”
 Court holds that no fundamental rights are implicated here. There is no discrimination
against “non-traditional” families – allows 2 non-related people, even of same sex, to
cohabitate.
Belle Terre DISSENT (Marshall): Would apply heightened scrutiny because this statute
implicates fundamental rights. Marshall thinks there are Constitutional protections for the
selection of ones living companions. Freedom of association and privacy (deeply personal
choices of intimate relationships within the home). Constitutional infringements cannot occur
absent legitimate government objectives and tailored statutes. Zoning rules are plausible, but not
when they unjustifiably distinguish between people on the basis of a fundamental right. This law
also is not tailored to meet the goal.

Moore v. City of East Cleveland (US 1977) (plurality decision – Powell – incl. Marshall):
Facts:
 The City of East Cleveland (P) had a housing ordinance limiting occupancy of a dwelling
unit to members of a single “family,” that word being limited to a few categories of
related individuals
 Mrs. Moore (D) was convicted of violating the ordinance because she had two small
grandsons living with her who were first cousins to each other rather than brothers.
 The one grandson had come to live with D, her son, and that son’s child when his mother
died.
 Mrs. Moore argued that the ordinance was unconstitutional under the Due Process Clause
Holding: It is unconstitutional for an ordinance to force citizens to live in certain narrowly
defined family patterns, as this one does.
 The Court invalidated an ordinance limiting occupancy of any dwelling unit to members
of the same “family” defining family to include only certain combinations of blood
relatives.
 Court says this nuclear family = arbitrary line.

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o Court distinguishes Belle Terre on the basis of blood relation.


 Applies heightened scrutiny because fundamental right to privacy is implicated –
“slicing deep into the family itself.” “The Constitution prevents East Cleveland from
standardizing its children – and its adults – by forcing all to live in certain narrowly
defined family patterns.” Legitimate governmentt goals, but under/over-inclusive means
of achievement + there are alternatives.
 Functionally – grandmother is the caregiver – should focus on functional
parenting rather than biological considerations.
 Culturally – various cultures define family differently – some cultures have a
more inclusive definition of family than the nuclear family. Extended family is
increasingly important in modern times.
 Practically – the reason behind the request for definition is important – different
constructions of what counts as family in different contexts (i.e. tax, inheritance,
immigration, insurance, prison visitation).
Moore CONCURRENCE (Brennan + Marshall): underscore importance of extended family in
modern times AND right to association.
 The ordinance ignores the fact that a large part of the population has traditionally lived in
extended family units.
Moore DISSENT (Stewart + Rehnquist): No fundamental rights here. Right of association is not
meant to encompass this type of choice. Privacy right does not extend to grandmother
(qualitatively different than parent-child relationship).
 Slippery slope argument – if you let grandmother live with 2 sets of grandchildren from
different offspring, you will end up with Belle Terre. There is no fundamental right to
share “a contiguous suite of rooms” with all of your grandchildren. Law survives rational
basis – community concern and desire for tranquility outweighs burden on these people.
Could just leave East Cleveland if you want to live a certain way.
Moore DISSENT (White): fundamental rights are deeply rooted traditions; the right to live with
your grandchildren is not one of those – it expands the scope of the Due Process Clause too
much. Law survives rational basis.

Difference between Moore and Belle Terre = Blood relative vs. unrelated group of people?

Penobscot Area Housing Development Corp. v. City of Brewer (Maine 1981):


Housing Agency (P) v. City (D)
Facts:
 The City of Brewer (D) defined family for purposes of its zoning ordinance as a domestic
relationship based on birth, marriage, or other domestic bond.
 The city (D) refused to grant a use permit for a home for retarded individuals in an area
zoned for single family units
Holding: Upheld zoning ordinance.
 A group of retarded individuals living in the same quarters is not a family for zoning
purposes
 group home was only semi-permanent (average 1.5 year stay) no resident authority
figure, residents did not do own cooking. Court applies rational basis approach b/c law is
neutral on its face.
o No substantive due process NOR equal protection problem. Similar to Belle
Terre.
 Plaintiff’s strongest argument = lack of cohesiveness and lack of authority figure
Borough of Glassboro v. Vallorosi (NJ 1990):

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Borough (P) v. Property Owner (D)


Facts:
 Glassboro (P) passed an ordinance which limited the occupancy of certain dwellings to
families defined as a single housekeeping unit.
 Vallorisi (D) subleased a dwelling to 10 college students who shared the house, cooking,
cleaning, and maintenance:
o Glassboro (P) sought to evict them, claiming that they didn’t meet the statutory
requirements for a family- Vallorisi (P)contended that the ordinance was
unconstitutional and that it did not apply to his living arrangement.
Holding: Ordinances which limit the occupancy of dwellings to statutorily defined families are
valid if they include the single housekeeping unit element.
 Group of 10 unrelated college students who are living together for 3 years ARE “family.”
They functional equivalent of a family – financially interdependent (joint checking
account), function as a housekeeping unit, but their situation is not really
stable/permanent (only for duration of college). The defendants meet the statutory
definition of “family” and the ordinance is permissible. However, zoning ordinances
which limit family to “blood, marriage, or adoption” violate substantive due process.
New Jersey adopts functional definition of family.
Braschi v. Stahl Associates Company (NY 1989):
Companion of Decedent (P) v. Management Company (D)
Facts:
 Braschi (P) and Blanchard lived together in a rent controlled apartment for over ten years
until Blanchard’s death in 1986 when the management company tried to evict him under
the city’s Rent and Eviction Regulations, contending that he did not qualify as a family
member under the regulations.
Holding: Within the context of rent control and eviction regulations, the term “family” will be
interpreted to include those who reside in households having all the normal familial
characteristics (as in this case)
 NY adopts functional definition of “family” for purposes of rent control eviction. Statute
= eviction provision upon death, unless the other person that lived there was spouse or
“other family member.”
 Court held that same-sex partner was a “family member” and could remain in the
apartment after tenant died.
 Family includes 2 adult lifetime partners who hold themselves out to public as
spouses/partners, life insurance beneficiaries, doorman witnessed their togetherness,
emotionally and financially interdependent. Statutory purpose of the rent control
exception to eviction provision is specifically intended to protect people in Plaintiff’s
situation (as a matter of public policy).
 Limited application to rent control issues in NY – NOT meant to apply functional
definition of family for all contexts.
Braschi DISSENT (Simons): “family” is limited to objective definition of “BMA”
(Blood/Marriage/Adoption) Same-sex relationships not recognized as family in New York law –
should not be recognized for purposes of rent control law. Adopting a functional definition
leaves the rule open to abuse, is hard to administer, and has no clear line.
8. Will & Grace HYPO – man and woman live together as best friends who are
emotionally and financially intertwined. Are they “family?”
 Under Braschi, probably not – not the marriage-like relationship that the law is
trying to capture; mere co-dependent roommates.

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 Under Glassboro, maybe – the 2 friends are comparable to the 10 students in that
they function as a family unit.
Matthew Kavanagh, “Rewriting the Legal Family: Beyond Exclusivity to a Care-Based
Standard”
 Law should move away from exclusive definitions of families and move towards a
familial definition based on care-giving. People who provide care to children, have
a good faith bond with children, and whom children view as family, should be
defined as such and be given the rights and protections that other family members
get.
 This would fulfill the needs (instead of interests) of children better and provide more
benefits to children from the wider familial network.
 Should view “The Family” as a web of care-giving relationships – many of which do
not fit into neat categories (“BAM”).
 This definition will lead to public policy and regulation that is a) better for children
and b) better for families.

FUNCTIONAL DEFINITION OF FAMILY (


• Pros:
o Justice. Functional test creates a finer filter to separate people who really ought
to be allowed to stay from those who are trying to take advantage. Functional
test really highlights the group we think the rule was meant to protect.
• Cons:
o Potential for abuse. Functional definition might lead to abuse and fraud by
people who want to either obtain or keep a rent-control apartment (i.e. roommate
might claim they had a relationship with tenant OR long-lost relatives might send
mail to that address, file taxes there, so that when tenant dies, they have a claim).
o Uncertain and unworkable standard. No way to know for sure who might be
defined as family – no consistency in subjective decisions.
o Inefficient. Court doesn’t have $ resources or time to investigate the details of
every single case.

FORMALISTIC DEFINITION OF FAMILY (BAM)


• Pros: Certainty. There is a clear rule and people/courts know who is covered.
Efficiency. It is way easier to have a legal document demonstrating BAM than to spend
time figuring out exactly what the relationship was.
• Cons: Overinclusive. Someone with a much more attenuated or distant relationship with
the tenant could have a right that should go to someone who actually has a closer
relationship with the deceased. Underinclusive. Excludes people who truly deserve to be
exempt from eviction requirement and live in good faith family-like conditions.

______________________________________________________________________________

III: The Doctrine of Family Privacy


Fundamental right of privacy = right people have to be free of state interference in the most
fundamental decisions of human life and intimacy.
 This right is NOT explicitly recognized in the U.S. Constitution.
 Right to privacy is in the shadows (“penumbras”) of the First, Fourth, Fifth, and
Ninth Amendments.
McGuire v. McGuire (Nebraska 1953):

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Family Law Outline

Wife v. Husband
Facts:
 Mr. McGuire (D) was very tight with his money and refused to give his wife any funds
other than to pay for groceries, though they continued to live together.
 Wife asking court to order her frugal husband to give her more money to spend (wants to
go to movies, have indoor plumbing).
Holding: No support payments can be granted where the parties continue to live together as
husband and wife.
 No action for support within the context of marriage.
 This is NOT divorce proceeding! Parties still live in same house – but if they were
separated, this could be a valid maintenance claim. Court declines to intervene in the
financial arrangements made within the context of marriage. “The living standards of a
family are a matter of concern to the household, and not for the courts to determine.”
Even in the absence of a divorce claim, a claim for necessaries would be a valid claim.
 Doctrine of Necessaries = husband has a duty to support his wife by providing
what is necessary to spouse’s survival and minimal maintenance (i.e. lodging,
food, clothing).
 Decision is implicitly based on privacy and sanctity of marital relationship –
absent abuse, neglect or abandonment, arrangements between spouses are in the
realm of family privacy and courts should not interfere.
McGuire DISSENT: No precedents exist requiring separation as a condition precedent for a
spouse to file an equity action for maintenance. Would find constructive abandonment and let
wife get support money. Husband provides no/minimal support.
 Unfair that a woman who stays in marital home and only gets bare necessities cannot get
any maintenance, but a woman who moves out can get money for more than necessaries.
State objectives should be to keep relationships together – so don’t give wives incentive
to move out/get a divorce because they are dissatisfied with lifestyle.
Griswold v. Connecticut (Douglas) (US 1965):
Director of Planned Parenthood v. The State
Facts:
 CT statute prohibited the use of contraceptives.
 Director of Planned Parenthood contended that this statute that prohibited the
dissemination of contraceptive information violated constitutional rights of privacy
Holding: A Law restricting the use of or dissemination of information about contraception by or
to married couples violates the constitutional rights of privacy.
 This law violates constitutional right to privacy because it impermissibly intervened in
the personal decisions of husbands/wives; directly invades the marital relationship.
 Court may not interfere in intimate decisions of married couples = freedom of married
couples to choose the terms of their sexual intimacy. Established constitutional right of
privacy
 Right of privacy is inherent in marriage (older than Bill of Rights, basic
fundamental right within the context of marriage) and implicitly necessary to
effectuate the goals of the Constitution.
Griswold CONCURRENCE (Goldberg): CT’s birth-control law unconstitutionally intrudes upon
the right of marital privacy – would narrow holding to apply right of privacy ONLY to married
people.
Griswold CONCURRENCE (White): The statute deprives married couples’ liberty without due
process of law.

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Family Law Outline

Griswold DISSENT (Black): Right to privacy is being used as a pretext for the court to invalidate
legislation it doesn’t like.
 Question left open by Griswold = whether the holding extends the right of
privacy beyond marriage, to reproductive freedom? Eventually  YES.
Eisenstadt v. Baird (Brennan) (US 1972):
State Agency (P) v. Distributor of Contraceptives (D)
Facts:
 MA law which criminalized the distribution of contraceptives to unmarried people
 Baird (D) appealed his conviction of distributing contraceptives to unmarried persons on
the basis that the statute prohibiting such violated the constitution.
Holding: A statute treating married and unmarried people differently regarding contraceptive
devices is unconstitutional: statute struck down
 Expanded Griswold’s fundamental right of privacy to unmarried people – privacy is
an individual right. Equal Protection and Due Process. Statute was discriminatory on
its face - applied heightened scrutiny, not rational basis.

Lawrence v. Texas (Kennedy) (US 2003):


Constitutional Claimant (P) v. The State (D)
Facts:
 2 defendants convicted – cops arrested two men having consensual anal sex in the
privacy of home. (deviant sexual intercourse)
Holding: The Equal Protection Clause of the 14th Amendment protects freedom to engage in
private conduct among heterosexual and homosexual partners.
 Court invalidated TX law prohibiting 2 people of same sex to engage in deviate sexual
conduct. Invalidates TX sodomy law on the basis of right to privacy. Court reasoned
that the conduct was private and consensual – due process violation of fundamental
right to privacy. Overruled Bowers (decision was based upon distorted understanding of
LGBT).
 Bowers v. Hardwick (US 1986): Overruled by Lawrence – limited Griswold and
Loving to situations of sexual intimacy within the context of marriage. Upheld same-
sex sodomy law.
Lawrence CONCURRENCE (O’Connor): While Bowers should NOT be overruled, the majority
is correct in finding the Texas statute here to be unconstitutional.
 Equal protection basis for claim, but not due process. TX law discriminates against gay
people as a class. Would apply intermediate standard of review – law treats straight and
gay people differently without a proper government objective or rationale. This case is
NOT about same-sex marriage –rational review of TX sodomy law does not mean that
“other laws distinguishing between heterosexuals and homosexuals would similarly fail
under rational basis review.”
Lawrence DISSENT (Scalia): 1) This case is not really about privacy; really about same-sex
marriage. 2) States can constitutionally regulate sodomy because there is no fundamental right to
engage in sodomy. Even if there was a fundamental right – it is subject to rational basis review.
Texas law passes rational review – government objective justifies the intrusion on the
fundamental right. Government objective = public policy and traditional notions of sexual
morality. 3) Slippery Slope: if you open the door to homosexual sexual activity – gay marriage
will come next. 4) Since the statute makes use of sex classifications (treat men and women
differently in that men can do something a woman can’t do and vice versa), there is a potential
sex discrimination claim.
 Remaining Questions =

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Family Law Outline

1) Is this case about sexual privacy or homosexual sexual activity?


2) What is the scope of the holding?
3) What consequence, if any, will this decision have on same-sex marriage?
• Scalia – opens door for same-sex marriage. Just as Eisenstadt expanded
privacy right for married couple sex in Griswold to unmarried couple
sex, this case expands privacy right to homosexual sex. It follows that
fundamental right to marry different sex will expand into fundamental
right to marry same sex.
i. He also analyzes O’Connor’s equal protection argument 
marriage laws discriminate between gays and straights – since
this case eradicates distinction between gays and straights in
matters of sexual conduct – it will soon eradicate distinction
between gays and straights in matters of marriage.
ii. Gay marriage cases will be brought under sex discrimination
arguments. You have to reject sex discrimination argument to
reject future outcome of same-sex marriage claims.
• O’Connor – There are legitimate state reasons for opposing gay marriage
that don’t exist for opposing gay sex! i.e. preserving traditional
institution of marriage justifies ban on gay marriage. However,
O’Connor does not discuss what these legitimate state interests are – she
just asserts that they exist.
• Kennedy – this is not a same-sex marriage case. Allowing same-sex
sexual relations does not necessarily mean that same-sex marriage will
follow. Ignores Scalia.

______________________________________________________________________________

IV. Traditional Models of Marriage and Challenges and Revisions to it


A. GENDER
Gender (Sex) Discrimination claims: For a gender-based classification to withstand equal
protection scrutiny, it must be established “at least that the classification serves ‘important’
governmental objectives and that the discriminatory means employed are ‘substantially related to
the achievement of those objectives.’” Nguyen, citing United States v. Virginia.
 Sex discrimination claims are subject to intermediate scrutiny. Whereas race is a
suspicious statutory classification and is subject to a heightened scrutiny
standard, sex distinctions are not always suspicious because they may be based
on actual differences between men and women. Gender classifications are
suspicious, but not as suspicious as race, etc. But the standard is more rigorous
than rational basis review, where there can be any plausible rationale behind the
law.
 Family and procreation are contexts where inherent differences between gender
capabilities justify sex classifications in the law.
• i.e. can have employment laws based on a bona fide occupational
qualification that relates to being a man/woman.
2. Asymmetrical gender laws in family law are based on one of three things:
1) Paternalism – laws designed for protection of women.
a. role of mother/wife needs protection of law.
b. not sexist invidiously, just protecting women
2) Natural Differences Justification – there are fundamental differences,
perceived or real, between men and women.

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Family Law Outline

3) Religion – divine ordination of woman’s role in society.

Graham v. Graham (E.D. Mich. 1940)


Former Husband (P) v. Former Wife (D)
Facts: Sidley Graham (P) sued to enforce a contract between him and his ex-wife calling for her
to pay him $300 per month in exchange for him to quit his job to travel with her.
Holding: A contract between persons contemplating marriage to change the essential incidents of
marriage is illegal- court will not enforce it.
 Spouses have a pre-existing duty of mutual support – cannot make a contract to do what
you already were required to do. Such a contract is also antithetical to public policy –
cannot change the structure of a relationship that is already defined by the state.
What problems does court have with this contract?
1) Accepted norm that husband establish domicile
2) Issue of privacy: courts do not want to enforce private decisions of marriage
3) This was a time when there was question if wife could privately contract
4) Marriage has a third party the state- court is concerned with parties writing their own
contracts changing the essentials of marriage.

Bradwell v. Illinois (Bradley) (US 1873):


Female Applicant to state bar (P) v. State (D)
Facts: Bradwell’s application for admission to the Illinois bar was denied solely because she was
a woman.
Holding: A state, under its police power, may deny entry into an occupation or profession on the
basis of sex.
 Upheld constitutionality of Illinois law prohibiting married women from practicing law.
There are actual, natural differences that justify differential treatment of men and
women. Characteristics of women (docile, domestic) render them unfit for certain
professional pursuits or civil occupations. While the differences proffered are outmoded
and incorrect, the concept still survives. (2) No fundamental right to be a lawyer.
 This case highlights historical views of women – married women have no
separate legal existence from husbands. Therefore, cannot enter Ks – cannot be
lawyers. Role of woman is to be wife + mother.

Ruth Ginsburg: Gender and the Constitution


Two themes dominate gender and law:
1. Women's place in a world controlled by men is divinely ordained
2. The law's differential treatment of the sexes operates benignly in women's
favor. Not until 1971 did the Supreme Court see a sex line as a
legitimate constitutional challenge.

Orr v. Orr (Brennan) (US 1979):


Former Wife (P) v. Former Husband (D)
Facts: Orr (D) contended that Alabama’s alimony statute was unconstitutional because it placed
alimony obligations on husbands but never on wives. Poor husband (Orr) wants rich wife to pay
him alimony. Husband asserts equal protection argument on the basis of sex discrimination.
Holding: State statutes which impose alimony obligations on only one sex are unconstitutional.
Court rejects state justifications for the law stating:

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Family Law Outline

(1) traditional notions of women as dependents are no longer true. This rule leads to
perverse results – the beneficiaries (women who earn more than their husbands) are the very
people that do not need the protection;
(2) even if compensation to women for past discrimination was valid, this law is not
carefully tailored to that end; and
3) sex is not necessarily an accurate proxy for need. It takes no additional work/time to
see if it is the man or woman that needs the money b/c there are equitable distribution hearings
anyway (do not need to use sex as a proxy for need).
 Marks the beginning of the use of equal protection clause to invalidate laws
which discriminate on the basis of sex by having men bring suits.

United States v. Virginia (US 1996)


Facts:
 Virginia (D) created the Virginia Women’s Institute for Leadership (VWIL) to avoid
equal protection problems with Virginia Military Institute’s (VMI) male-only
admissions policy.
Holding: Discrimination based on sex is unconstitutional unless it is substantially related to
important government objectives.
 Between Orr and Virginia (15 years) the line begins to blur between intermediate scrutiny
and strict
 Standard used in Virginia- Exceedingly persuasive, burden is on state to show that
classification serves compelling government objective and means used are substantially
related to objective… seems a lot like strict scrutiny.

Nguyen v. INS (Kennedy) (US 2001):


Facts:
 Unwed American father and Vietnamese mother have child – requirements for
child’s U.S. citizenship varies depending on whether U.S. citizen is mother or father.
 Father must prove 1) paternity and 2) relationship with child.
 Mother merely must prove she is biological mother.
Holding: Court upholds federal law that treats men and women differently in the context of
citizenship for their children. It is OK for laws to use sex classifications to the extent that there
are actual, biological differences between men and women. “Just as neutral terms can mask
discrimination that is unlawful, gender specific terms can mark a permissible distinction.”
 Law survives Equal Protection scrutiny. Important governmental interests = (1) assuring
that biological parent-child relationship exists and (2) child and citizen parent have real,
everyday ties connecting child to the U.S. This law is substantially related to those
interests (women are always present at birth, whereas father may not even know he has a
child + more often than not, women do not abandon their children, whereas fathers do).
Nguyen DISSENT (O’Connor): Would find law unconstitutional because proposed government
interests do not justify the classification AND the means are not substantially related to the
achievement of those objectives AND less-restrictive alternatives exist. Just because baby comes
out of woman, does not mean she has an automatic attachment with child. Child could have a
better bond with father. Also, a mother could immediately abandon the child after birth. As
between classified and sex-neutral laws  should pick gender-neutral laws. Courts should be
extra-suspicious of gender distinctions in the context of citizenship and child-rearing because
they might be pretexts for entrenched assumptions about the roles of men and women in child-
rearing.

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B. TORTS AND TESTIMONY
Tort Claims Involving Spouses
Definition: Heart Balm Suits = lawsuits with a claim for monetary damages as solace for the
emotional trauma occasioned by loss of love or relationship.
Definition: Heart Balm Statute = laws designed to abolish the common law claims of alienation
of affection, breach of promise to marry, and criminal conversation.
 These tort claims were available to men and NOT women. In an effort to bring about
equality between genders – courts could choose either to extend causes of action to
both spouses or do away with the action altogether.
 These tort claims invite abuse – spouses utilize them to get $ and, in the time of
fault-based divorce, used to achieve a more favorable settlement.
Intentional Interference with the Marital Relation/Alienation of Affection
 Prima facie case of alienation of affection:
• Couple was happily married + genuine love and affection existed
between them
• Love and affection was alienated and destroyed
• Wrongful and malicious acts of D caused the alienation

Arguments to KEEP cause of action:


 Property rights – common law idea that a woman is property of man – stealing a spouse
is like stealing property. Idea is that you can steal love and affection from a spouse in the
same way you can steal a car.
 Marital unity - state has interest in keeping marriages together – this lawsuit gives wives
a sword against potential mistresses.
Arguments to ABOLISH cause of action:
 MWPA removed concept of women as property – so keeping action is perpetuating a
legal fiction.
 Love and affection is not something that can be “stolen.”
 Free will = humans are in control of their own actions.
 Not every marriage is worth preserving. People in good marriages do not need this
protection – would be used by people in bad marriages – who we don’t really want
married anyway! The protection that this cause of action gives will be used by the wrong
people.
Hoye v. Hoye (KY 1992) –
Facts:
 Plaintiffs ex husband had an affair with a co-worker
 Plaintiff sued the other woman for the intentional interference with marital relation
Holding: abolishes the common law tort of intentional interference with marital relation
 Cause of action had its roots in the idea that a woman is her husband’s chattel and can be
stolen and that loss of her services is charitable.
 Underearly English law it was really two causes of action: abduction
(helping her leave him/no adultery required) and seduction (which
required adulterous interference.)
 Later on in America, women acquired more rights and they acquired these causes of
action; the focus shifted from a compensatory property-based tort as a means to
preserve marital harmony and a way to get deterrence.

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Family Law Outline

 Thus, the court


observed, the original idea that one has a property right in their
spouse's mind and body became "a legal fiction."
 There are other
problems with the continued existence of these causes of action as
well: logical inconsistency (why blame a third party for changes
within the marriage?), and they encourage blackmail (the forlorn
spouse threatens to sue and the 3rd party is pressured to settle by
threat to their reputation). Also, the children may have to testify;
at the very least they will be exposed to their parent's extramarital
affairs.

Breach of Promise to Marry


 Contract and Tort hybrid
Arguments to KEEP action:
 Equity – men promise to marry women to have sex with them.
 Stare Decisis
Arguments to ABOLISH action:
 Legal status and rights of women have changed – can achieve success in ways other than
marrying up.
 Should not encourage someone to marry someone he doesn’t want to because it will lead
to unhappy marriages/divorce. Should not penalize someone for being mature enough to
know he is not ready for marriage.
Gilbert v. Barkes (KY 1999) SEE BELOW- (under contracts) abolishes the common law tort of
breach of promise to marry. Man breaks off engagement with woman. Woman cannot recover
under breach of contract or IIED claims either.

Criminal Conversation (Seduction)


 Requires adulterous relationship between ∏’s spouse and ∆, no physical separation of
spouses is necessary.
 Reason for KEEPING it:
o Vindicate husband’s property rights in his wife’s person
o Punish ∆ for defiling marriage and family honor and placing legitimacy of
children in doubt.

HOWEVER, there are other tort theories that ∏s can use in marriage context!
Intentional Infliction of Emotional Distress
To make a prima facie case of IIED:
 Wrongdoer’s conduct is intentional or reckless;
 Conduct must be outrageous, intolerable, against generally accepted standards of
decency;
 Causation between conduct and emotional distress
 Emotional distress must be severe.

Osborne v. Payne (KY 2000)
Facts: Husband sues parish priest for seducing his wife.

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Family Law Outline

Holding: There are remedies and rights of action for victim spouses even if heart balm suits are
abolished – IIED being one of them. Priest’s behavior = outrageous and whole incident rises to
level of IIED.
 Combination of relationship (priest) and conduct that separates this from adultery

Loss of Consortium
 Definition: consortium = conjugal fellowship of husband and wife, and right of each to
the company, society, cooperation, affection and aid of the other in conjugal relations.
 Definition: loss of consortium = emotional distress suffered by a spouse who loses the
company of the other spouse when his/her mate is physically injured due to another’s
tortuous conduct.
 Arguments to KEEP action:
o There is a need for both LOC and Alienation of Affection claims – LOC is
different b/c while emotional injury is still suffered by one spouse, there is a
physical injury to the other.
 Arguments to ABOLISH action:
o Need to draw a line between people who can claim emotional distress and
those who can’t. Bystanders versus family.
• Costly and difficult to assess damages and evaluate emotional distress
• Allows estranged spouses to sue for something that may not exist in
actuality.
Romero v. Byers (NM 1994)
Facts: Husband killed in auto collision and wife sues for loss of consortium and household
services.
Holding: Court permitted wife to add a loss of consortium claim for herself in her husband’s
personal injury suit. Wife can sue the driver of a car that killed her husband for her loss of
consortium.
1) No longer the majority rule among jurisdictions to forbid it
2) Loss of consortium is no longer regarded as an uncertain and indefinite claim; it has been
defined as “the emotional distress suffered by one spouse who loses the normal company
of his or her mate when the mate is physically injured due to the tortuous conduct of
another.
3) N.M. tort law is more developed in re duty owed to the plaintiff than it was when the
earlier claims were denied: it has been settled that a duty is owed where harm to the
plaintiff was foreseeable.
4) The old fear of double recovery was unreasonable, because loss of consortium has been
defined such that it does not include loss of household services. No duplicative claims, no
double recovery.
5) The old let-the- legislature-decide reasoning was not sound because “courts . . . have
been the primary instrument for change in the common law.”

Negligent Infliction of Emotional Distress (Bystander Liability)


Prima facie case of NIED:
 Death or serious physical injury of another caused by Defendants s negligence
 A marital or intimate, familial relationship between plaintiff and injured
 Observation of the death or injury at the scene of the accident
 Resulting severe emotional distress
Reasons FOR NIED claim:

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Family Law Outline

 Allows people who are in a bona fide, functional equivalent, marriage-like relationship to
recover for emotional damages suffered.
 There are still other requirements to make out a prima facie claim that will weed out false
claims.
 Factual inquiry as to the nature of the relationship ensures that the person asserting the
claim fits within the class of persons the law was designed to protect.
 Perverse, but good, result of weeding out meritless claims from otherwise qualified
claimants, i.e. estranged spouses.
Reasons AGAINST NIED claim:
 No clear line as to who can recover – enormous, unforeseeable scope of liability for the
negligent actor.
 May prevent recovery by people with actual, legally-recognized familial relationships.
 Slippery slope – if you allow fiancées to recover, what about BFFs?

Dunphy v. Gregor (NJ 1994)


Facts:
 Plaintiff is woman suing the man that killed her fiancée – NIED claim.
 NJ embraces the functional definition of who can recover under NIED.
Holding: NIED liability is expanded to allow recovery by a person who is engaged to be married
to and lived with the decedent (within the foreseeable class of persons such an event would
affect). It is a question of fact for jury to decide whether Plaintiffs relationship with decedent was
the functional equivalent of an intimate familial relationship.
Dunphy DISSENT (Garibaldi)
 There is a need for a bright line rule – cut off the class of people at marriage. Majority
decision substantially widens the scope of liability for negligent actors. Slippery slope
argument.

Defenses for Spouses


Spousal Tort Immunity
 Defense to tort claim – one spouse cannot sue his/her spouse in tort
Arguments FOR immunity:
 Legal fiction that husband and wife = one, so you cannot sue yourself.
 Tort suit would destroy domestic harmony
 Prevents insurance fraud collusion (one spouse injures other to collect)
Arguments AGAINST immunity:
 Legal fiction is outmoded – 2 separate people w/separate identities
 Denies a right to married couples that is given to unmarried people.
 Marital harmony is promoted by giving spouses a forum to work out their problems.
 2 unmarried people are just as able to collude to commit fraud against an insurance
company as 2 married people.

Boone v. Boone (SC 2001)


Facts: Wife is injured in car accident in Georgia caused by her husband.
Holding: Court abolishes interspousal tort immunity in SC.
 Wife can sue her husband for personal injury. GA’s law of interspousal tort immunity is
against SC public policy and will not be applied.

Marital Privilege Exception

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Family Law Outline

 Defense to tort claim – special matters of the marital relationships, such as sexual
intimacy, are not subject to judicial review by tort lawsuit.
Arguments FOR exception:
 Sexual privacy argument (Lawrence v. Texas). Injuries resulting from sexual relations
between spouses should not give rise to a tort lawsuit.
Arguments AGAINST exception:
 Perpetrators ought not be allowed to escape liability for wrongful acts just because they
occurred during the marital relationship.

Testimonial Privileges
Spousal Confidential Communication Privilege
 Prevents testimony regarding confidential communications between spouses (unless both
spouses consent).
i. Communications = oral, gestures
ii. Confidential = within the presence of only the spouse – intended to
be kept between the spouses
 Covers communications that occurred during the marriage.
 No one can testify about the communication.
o There are 3 exceptions (NY) to this rule (spouse CAN testify):
 Criminal activity is aimed at the other spouse
 communication is made in presence of 3rd parties
 Defendant in communicating relied on other grounds, i.e. silence by fear.
 The privilege is invoked forever – even if parties divorce or die.
• Privilege does not apply when spouses litigate against each other OR if they
are “partners in crime.”
i. Statements + gestures leading up to abetting might be protected, but
at the moment of being a partner in crime – the exception kicks in.
ii. When partners in crime exception kicks in – STD applies.
• In NY – this is the only spousal testimonial privilege
Reasons FOR SCCP:
 Spousal honesty – want spouses to be honest with each other.
 Marital stability – want to preserve marriages
 Unified entity of marital relationship – the idea that a marriage is a unit and what goes on
within a marriage should stay there.
 Right to privacy in family matters
 Prevents bribery from officials and pitting the spouses together, like what happens in
Trammel because both spouses are forbidden from testifying.
 Limited in scope - only confidential communication – not everything.
 Clear line – it lasts forever and applies to everything said and done within the context of
marriage.
 Partner in crime exception weeds out spouses colluding to commit crimes.
Reasons AGAINST SCCP:
 Privacy at the expense of TRUTH.
 Marriages don’t last forever anymore – leads to preposterous results – i.e. husband can
tell 5 different wives the same story and the privilege extends to all of them because told
during marriage.
 Spouses may conspire to commit crimes in reliance on this privilege.

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Family Law Outline

 Ignores social realities and denies a right to a class of people who function as spouses,
but are not legally-recognized as such. Ridiculous result that an estranged spouse is
protected, but not a real love.
o Should the exception be extended to functional equivalents of marriage
relationship? Of any intimate relationship?
o 1 get out of jail free card? Allow everyone to have 1 iron-clad co-conspirator.
 Privilege hurts the weaker spouse (cannot go to authorities b/c afraid and even if you did,
it would be inadmissible)

Spousal Testimonial Disqualification (only lasts for duration of marriage_


 Prevents a spouse from being forced to testify against his/her spouse
 Covers everything a spouse knows (broader than SCCP)
 Must be married at the time the testimony is sought – the privilege only lasts for the
duration of the marriage.
 Privilege still applies when spouses litigate against each other.
 STD is a privilege held by the witness-spouse.(Post Trammel)
o Pre Trammel: both had to agree
Reasons for STDP
 Preserving harmony and sanctity of marriage relationship.
 There are exceptions to limit its sweep, e.g., if one spouse wants to testify, then she can.
 If spouse is willing to testify, then marriage isn’t worth saving.
Reasons AGAINST STDP
 Based on outdated theory that H + W = 1 – don’t have to testify against yourself.
 Still allows for bribery and pitting spouses against each other if the witness-spouse wants
to testify.

Trammel v. United States (Berger) (US 1980)


Facts:
 Husband and wife involved in heroin distribution plan. Wife caught – offered plea deal if she
testified against co-conspirators including her husband
 Court rejected husband’s assertion that he had a privilege to prevent her from testifying against
him.
Holding: Spousal testimonial disqualification is a privilege held by the witness-spouse – not
party-spouse. Husband cannot prevent wife from testifying, but if wife doesn’t want to testify –
she can claim privilege. The privilege exists to exclude evidence of criminal acts and of ALL
communications made in the presence of third persons.
 The court said, we conclude that the existing rule should be modified so that the witness-
spouse alone has a privilege to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying. This modification -- vesting the
privilege in the witness-spouse -- furthers the important public interest in
marital harmony without unduly burdening legitimate law enforcement
needs.
 Defendant-husband’s argument: should not make witness-spouse choose between her
own fate and her husband’s. if you give defendant the privilege, it avoids this choice of
evils dilemma.
Handout on spousal communications:
Spousal Confidential Communication Privilege

23
Family Law Outline

 Prevents testimony regarding confidential communications between


spouses, unless both spouses consent
 Covers confidential communications between spouses
 Must be married at time of communication
 Applies to all proceedings
 No one can testify about communications
 Lasts forever (even if the spouse dies
 Privilege does not apply when spouses litigate against each other;
typically, privilege does not apply if spouses are "partners in crime”
 The only type of spousal testimonial privilege that New York State has
Spousal Testimony Disqualification
 Prevents a spouse from being forced to be a witness against his/her spouse
 Covers everything a spouse know
 Must be married at time testimony is sought
 Applies to proceedings brought against the spouse (typically)
 Only the spouse may not testify
 Last for the duration of marriage
 Spousal testimony is not disqualified when spouses litigate against each other
 Under the Federal Rules of Evidence, after Trammel, the
witness-spouse holds the privilege, not the defendant-spouse

---------------------------------------------------------------------------------------------------------------------
CRIME IN THE FAMILY
 Crimes within the family (e.g., assault of spouse/children, rape) are treated and
conceptualized differently than crimes in other contexts. Why?
 There is an ongoing relationship – families live with each other so it is difficult to
determine “who started it.” Police may be hesitant to enforce.
 The family is a particularly private and autonomous domain – all the “criminals”
act in privacy of own home and without external witnesses.
 Family members have a vested interest in not hurting other family members.
Victims may be reluctant to complain, press charges, or testify.
 For example – specialized procedure for domestic violence as opposed to regular
abuse.
 For example – rape was historically treated differently depending on whether the
victim was married or unmarried.
 Rule = MPC §213.1 – Rape statute explicitly exempts spouses from class of
people whom you can rape.
 MPC §213.6 – Applies a functional definition of spouse. Extends the exemption
to people living as man and wife, and removes it from legally separated spouses.
Marital Rape Exception
Idea that one spouse cannot rape the other.
Justifications for MRE (cannot have rape in marriage):
 Blanket/Implied Consent – woman consents to sex all the time when she agrees to be
married
 Chattel – woman is property of man, can do what he wants with his own property
 Unity of marital identity – spouse cannot rape himself.
 Fraud potential – spouses may fabricate charges for revenge

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Family Law Outline

 Disturbs marital harmony


 Privacy – do not want gov’t in bedroom and examining sex acts
 Continuing relationship of intimacy means that sex should be thought about differently
 Even MPC treats stranger rape and intimate rape differently at law
Reasons Against MRE (there can be marital rape):
 Ideas of chattel and marital identity are no longer applicable.

Jill Hasday, Contest and Consent: A Legal History of Marital Rape;

People v. Humphrey, 921 P.2d 1 (Cal. 1996);

Facts:
 Evelyn Humphrey shot and killed her live-in-boyfriend, Albert
Hampton.
 She immediately confessed to the killing and made a claim of
self-defense at trial.
 Trial counsel introduced evidence of Battered
Woman Syndrome, which the judge instructed the jury to disregard when
considering the objective reasonableness of her actions.
Holding: Evidence of Battered Woman Syndrome is relevant to both
the reasonableness and the subjective belief for the necessity of self
defense and a jury may consider the evidence for both prongs.
 Reasonable person standard: The standard of case exercised by one
who possesses the intelligence, education, knowledge, attention, and
judgment required by society of its members when governing behavior;
the standard applies to a person's judgment when determining breach of
a duty under the theory of negligence.

R v. Mallot, (Supreme Court of Canada 1998);


Facts: (none)
Summary of Decision:
Judicial advances have been made in willingness to consider a
woman's entire experience as relevant and perhaps different from a
man's entire experience. BWS evidence is admissible to instruct the
jury on myths and stereotypes of battered women, but a new stereotype
of a "battered woman" must be avoided. Battered women may have fought
back, may be professionals, and may be women of color. The
reasonableness standard is not that a battered woman must be
reasonable "like a man" or "like a battered woman" when she is
claiming self-defense. The evidence should be introduced for the
purpose of explaining why she stayed with her abuser. Stereotypes
have no place in the courtroom and a judge and jury should be
instructed on the relevance of BWS.

C.O. v M.M., 815 N.E.2d 582 (Mass. 2004);


Mother of Victim v. Alleged Abuser
Facts:
 M.M.(D) allegedly sexually assaulted C.O.’s (P) daughter. C.O. sought and obtained an
abuse prevention order against M.M.

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Family Law Outline

Holding: The court must apply the express statutory factors in determining the appropriateness of
an abuse prevention order.
 Statute directs the court to consider several factors which it did not do here.
o Ex parte proceeding

Turner v. Lewis, 749 N.E.2d 122 (Mass. 2001)


Facts:
 Custodial paternal grandmother sought abuse protection order against
non-resident biological mother after mother assaulted the grandmother.
Holding: Paternal grandparent of a child whose parents were never married is related by blood to
the child’s mother for purposes of the abuse protection statute.
 Protection order should only be granted to those related by blood, marriage, or household
membership: statute includes those who have a child in common
 Grandmother’s Argument: she is related by blood to the child as the mother is related by
blood, thus mother and grandmother are related by blood
 Statute is intended to have flexibility and broad application to protect those in familial
relationships
 Public policy supports this as well because increase in grandparents raising grandchildren-
grandmother is entitled to protection from domestic abuse
Dissent:
 Unmarried parents were considered members of the same household or family because of
their status as parents, not because of blood relation to the child. Statute does not extend
to custodial grandparents if not related by blood to the perpetrator of violence. The
court’s duty is to construe the statute as it exists, not to incorporate social “trends.”

Lisa Mundy, Fault Line;

Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005)


Facts:
 Gonzales attempted to have the police enforce a restraining order against her ex-husband
when the ex-husband took their three daughters on a day when he did not have visitation.
The police did not respond in a timely manner to Gonzales's many requests for help and
the ex-husband murdered the girls. Gonzales filed a claim in federal
district court that her constitutional rights had been violated
because the police did not enforce the restraining order.
o Gonzales Argument: The police had violated her 14th Amendment rights when
they refused to enforce the restraining order despite having probable cause that it
was being violated.
Holding: An individual does not have a constitutionally protected property interest in police
enforcement of a state-issued restraining order.
 There is no mandatory arrest requirement within the restraining order statute.
 It is public policy for the police to have discretion, even in mandatory arrest cases.
Dissent:
 When Gonzales (P) sought a restraining order, she sought a government service
which could result in a property interest being created- the majority seems to dismiss
mandatory arrest in a context of domestic violence when most states create
mandatory arrest in that context.
 The state law guaranteed a protection to Gonzales (P) once she obtained the requisite
order, and she was entitled to rely on it- state officials could not deprive her of her

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Family Law Outline

property interest in the enforcement of her restraining order, therefore the police
behavior clearly created a due process violation.

----------------------------------------------------------------------------------------------------------------
Historically: Prenuptials were antithetical to public policy and only protected the husband who
had more money and power. Stein: Prenuptials protect against divorce because they force
couples to discuss the essentials of marriage.

Marriages and Contract


 Early rule = spouses cannot make contracts with one another (particularly because
wife did not have power of contract and spouses were the same legal entity).
 Married couples may enter into contracts, but they may NOT enter into contracts
that change the essential functions of marriage.
 Antithetical to public policy because structure of marriage is already defined by
the state.
 Such a contract would undermine state’s interest in and usurp state’s function in
marriage. States confer legal status on married couples that reflects the benefits
and duties associated with that legal status. If you allow spouses to compromise
and change the duties and obligations of marriage, there is no limit to what
spouses may contract to do! Each couple could theoretically write their own
definition of what marriage is.

Graham v. Graham (SEE ABOVE in gender)(E.D. Mich. 1940)


Holding: Court will not enforce contract made between husband and wife in which wife promises
to pay $300/month to husband in exchange for him to quit his job and travel with her. Spouses
have a pre-existing duty of mutual support – cannot make a contract to do what you already were
required to do. Such a contract is also antithetical to public policy – cannot change the structure
of a relationship that is already defined by the state.
What problems does court have with this contract?
1) Accepted norm that husband establish domicile
2) Issue of privacy: courts do not want to enforce private decisions of marriage
3) This was a time when there was question if wife could privately contract
4) Marriage has a third party the state- court is concerned with parties writing their own
contracts changing the essentials of marriage.

 But what are the essential functions of marriage that you cannot change?
 Duty of Support + Duty of Care
 Spouses CAN make contracts in certain contexts – i.e. business contracts for
services outside the home.
Spouses CAN make prenuptial agreements. Contracts BEFORE marriage that provide for future
separation after marriage (discuss what will happen upon dissolution of marriage or death –
assets, obligations, support).

Edwardson v. Edwardson (KY 1990)


Former Wife (P) v. Former Husband (D)
Facts:
 Mrs. Edwardson (P) sought enforcement of an antenuptial agreement that Mr. Edwardson
(D) would provide her with certain alimony and medical insurance

27
Family Law Outline

Holding: An antenuptial agreement disposing of property and maintenance upon divorce is valid
if made after full disclosure and if it is not unconscionable at the time enforcement is sought.
 Court upheld validity and enforceability of a prenuptial agreement signed before
marriage that deals with payment of maintenance and disposition of property upon
dissolution or divorce.
 Prenuptials may provide for more stable marriages – both parties know result if
they break up. Prenuptials do not destabilize marriage or promote divorce.
 Prenuptials prevent nasty court battles later by being mature and rational about
the issues now.
 Prenuptials do not and cannot modify the essentials of marriage.
 Prenuptial agreements may be modified subsequent to marriage.
 Prenuptials are common among 1) second-timers and 2) rich people.
 Presumption of validity – prenuptial agreements = contractss that will be
enforced and binding on parties absent fraud, misrepresentation or duress.

What can you not put in prenuptial?


 Custody. Child support. Child visitation (many prenups still include this- courts will
follow if one spouse claims that other spouse would be better parent)
 Sexual agreement
 Cannot contract around essentials of marriage
 Gross inequity

Simeone v. Simeone (PA 1990)


Former Wife (P) v. Former Husband (D)
Facts:
 Mrs. Simeone (P) filed an alimony claim, and Mr. Simeone (D) asserted their prenuptial
agreement as a bar to Mrs. Simeone’s (D) claim.
 Wife signed prenuptial agreement on the night before her wedding.
 Gross financial asymmetry between spouses.
 Alimony limited to $200/month for a total of $25,000 – gave up statutory right to
alimony pendente lite.
Holding: A prenuptial agreement entered into after full disclosure is binding, regardless of
whether it was reasonably or fully understood by both parties.
 It did not matter that she did not understand the terms nor that she didn’t have an
attorney. Court is reluctant to interfere with power of persons contemplating marriage
to agree upon what they regard as acceptable distribution scheme for their property.
Parties can have lawyers – don’t have to sign it – assume risks when they sign. Court
does not help people escape bad bargains.
Simeone DISSENT – prenuptial agreements should be encouraged, but not at the expense of the
institution and benefits of marriage.
 There are LIMITS to pre-nuptial agreements.
o Full Disclosure – cannot have material omissions or misrepresentations.
o Cannot be against public policy
Spires v. Spires (DC 1999)
Facts:
 Husband makes wife sign this ridiculous separation agreement that subordinates his wife
to husband’s will – grossly unequal, sexist terms – even deals with sexual and lifestyle
matters.

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Family Law Outline

Holding: Court awarded custody of children to wife. Did not enforce prenuptial agreement
provisions that neither party pay alimony or child support, husband be awarded custody of
children and husband have power to determine visitation arrangements
o Cannot be unconscionable in substance at time it was signed
o Cannot be procured by fraud or duress
o Prenuptials are not enforceable re: child custody, visitation, or
support.
 Court has independent duty to look at BIOC – no one can say at
beginning of marriage who will be better parent at the end of the
marriage.
 BIOC – cannot contract away duty to provide support to
children.
Marvin v. Marvin (CA 1976)
Female Cohabiter (P) v. Male Cohabiter (D)
Facts:
 Michelle (P) and Lee (D) Marvin allegedly entered into a cohabitation arrangement
whereby Michelle (P) agreed not to pursue her career and to live with Lee (D)
performing domestic services in exchange for equal sharing of the household income.
 Following the termination of seven years of cohabitation, Michelle (P) brought an action
against Lee (D) to recover property accumulated during that time.
Holding: Where cohabitation is expressly or impliedly founded on a sharing-of-property basis,
the non-acquiring partner has an interest in property acquired during cohabitation.
 Legal relationships (contractual, implied and express, and quasi-contract, quantum
meruit remedies) arise out of cohabitation arrangements even though the parties are
not married.
o Opens the door for cohabitation contracts. Established the idea of “pal-imony.”
∏-woman asserts oral contract  ∆-man told her that he doesn’t believe in
marriage, but if she lived with him, gave up her career, he would give her half of
everything he earned. They split up and he didn’t give her anything.
o Agreement between non-marital couple are valid – fail only to the extent
that they are ONLY for sexual services. Here, it was not just about sex – she
performed domestic tasks as well. Remanded for determination of whether a
contract existed.
Page 131-132: Note 2

Gilbert v. Barkes (KY 1999)


Facts:
 Man breaks off engagement with woman. In reliance, she sold her home, left her job and
moved in with him.
Holding:
 Court abolishes the common law tort of breach of promise to marry. Woman cannot
recover under breach of contract because there were no wedding plans.
 No IIED claims either because cannot prove that wrongdoers conduct was intentional or
reckless, outrageous or intolerable, offending standards of decency or morality, must be
causal conduct between wrongdoers conduct and emotional distress, emotional distress
must be severe.
o Court wants to encourage people to not get into marriage with those that they do
not feel comfortable
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29
Family Law Outline

WHAT ARE THE BENEFITS OF MARRIAGE?


 SPOUSAL TORTS – i.e. tort of alienation for affection (at least in NC).
 INTERSPOUSAL TORT IMMUNITY
 TESTIMONIAL PRIVILEGES (e.g. spousal testimonial disqualification + spousal
confidential communication privilege).
 CAUSES OF ACTION dependent on spousal status - wrongful death, IIED, NIED,
loss of consortium, dramshop, other torts
 TAX – inheritance, income (deductions, credits, exemptions)
 INHERITANCE AND PROBATE – title, tenure, descent and distribution, intestate
succession, survivorship
 INSURANCE
 COMPENSATION – workers’ compensation and victim’s compensation rights
 FAMILY LEAVE BENEFITS
 MEDICAL – care, treatment, visitation
 SUPPORT – Right to spousal support and child support
 DIVORCE PROCESS = simplified mainstreamed procedure for division of assets
and untangling the parties joint life – not available to cohabitating couples of civil
union members outside VT.
 PRENUPITAL AGREEMENTS can be made prior to relationship to deal with assets
after marriage.
 DOMESTIC VIOLENCE PROTECTION – Domestic violence victims have more
protection than regular assault victims
WHAT ARE THE OBLIGATIONS OF MARRIAGE?
 Duty to support – cannot be delegated to others
 Not absolute freedom of contract – cannot change the essential functions of marriage
WHAT INTERESTS DOES THE STATE HAVE IN MARRIAGE?
 Marital Unity / Preventing Divorce
 Legitimating children
 Organizing society to maximize control

______________________________________________________________________________

V: Who Can Get Married?


There are permissible restrictions on the fundamental right to marry – such as no incest, no
polygamy, no minors, etc. There are legitimate state interests that underlie these restrictions.
Incest
Definition: incest = marriage or sexual intercourse between persons too closely related in
consanguinity or affinity to be entitled to marry legally.
States have prohibitions forbidding incest. For example:
NY Dom. Rel. Law §5: Incestuous and Void Marriages. A marriage is incestuous and void
whether the relatives are legitimate or illegitimate between either:
1. An ancestor and a descendant;
2. A brother and sister of either the whole or the half blood;
3. An uncle and niece or an aunt and nephew.
If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void,
and the parties thereto shall each be fined not les than 50 nor more than 100 dollars and may, in
the discretion of the court in addition to said fine, be imprisoned for a term not exceeding 6
months. Any person who shall knowingly and willfully solemnize such marriage, or procure or

30
Family Law Outline

aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined
or imprisoned in like manner.
Legitimate state interests that justify imposition of incest restriction =
 Prevent birth defects – increased potential for and likelihood of birth defects when
relatives procreate.
 Public revulsion (“yuck” factor) – natural repugnance of people toward marriages of
blood relatives + moral condemnation
 Detrimental effect on children
 Damaging effect on family harmony
 Possibility of pressure, coercion, or non-consent via familial dynamic.
 Social Engineering and Channeling function of State
 Only partial restriction on fundamental right to marry – can marry anybody else in the
world except their family
 Family is supposed to be safe, non-sexual place
Why state doesn’t have legitimate interest in restriction?
 No evidence that birth defects actually occur – using relatedness as a proxy for
discrimination.
 A lot of people find a lot of things re: sex yucky – why this?
 Lack of empirical evidence or rational argument that children of relatives turn out
especially screwed up – the same was said for interracial parents, but now it is accepted
that there is no detrimental effect on kids.
 Fundamental right to marry

Singh v. Singh (CT 1990)


Half-Uncle (P) v. Half-Niece (D)
Facts:
 They were married, found out they were uncle-niece, annulled marriage b/c void, then
found out they were only half-uncle, half-niece, tried to un-annul the marriage.
Holding: Marriage between half-uncle and half-niece is incestuous and therefore, VOID.
 Court rejects half- argument, asserting that the relationship by the half blood is a bar to
marriage equally with relationship by the whole blood.
 Public policy would include half-relatives in incest statute.

Back v. Back (Iowa 1910)


Widow of decedent (P) v. Challenger to Estate
Facts:
 Man marries his former step-daughter after original wife dies.
 Upon his death, his then-wife (stepdaughter) petitioned for a share of his estate as his
widow. The trial court held that the marriage was incestuous under a state statute
prohibiting a man from marrying his wife’s daughter.
Holding: A man may validly marry the daughter of his ex-wife who, after his death, made
application to have property set aside for her.
 Their relationship as step-father, step-daughter terminated when step-father and mother
divorced. Can marry ex-step-daughter who is unrelated by blood IF father is no
longer married to mother.

In re May’s Estate (NY 1953)


Facts:
 Uncle married his niece in ceremony in RI.

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Family Law Outline

 The couple lived in NY and went to RI for sole purpose of evading incest statute in NY
(like Naim v. Naim) b/c Jewish uncle-niece could get married in RI.
 Husband/uncle wants to be declared a surviving spouse for the letters of administration
for the deceased wife’s estate.
 Their daughter wants the letters of administration and is challenging the validity of their
marriage.
NY Court recognizes the RI marriage between uncle-niece.
 Court holds that there is a presumption in favor of recognizing out-of-state marriages
(comity – place of celebration rule) – absent express statutory indication that NY will not
recognize marriages conducted in foreign sister states, but invalid in NY, they must give
effect to the marriage. NY must have a clear intent not to recognize the marriage. Also,
not entirely against public morality/policy.
May’s Estate DISSENT – NY Dom. Rel. §5 = evidence that NY public policy is against incest
and that NY did not intend to recognize incestuous marriages effectuated out of state.
Totally against natural law. There is a built in public policy exception to FFC clause. Too big
of a burden to expect legislature to delineate every single type of marriage it does not mean to
include.
Default: recognize rule of celebration unless morally impulsive (in statute)
Implications for gay marriage are enormous unless there is an express statutory statement that
State 1 will not recognize marriages of this sort made in State 2.

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Polygamy
Definition: polygamy = plural marriage. All 50 states have laws prohibiting polygamy
NY Dom. Rel. Law §6: Void Marriages. A marriage is absolutely void if contracted by a
person whose husband or wife by a former marriage is living, unless either: 1. Such former
marriage has been annulled or has been dissolved…; or 3. such former marriage has been
dissolved [due absence or abandonment].
Legitimate State Interest for Restricting Polygamous Marriages:
 Not a complete bar on marriage – you can get married – but only to one spouse at a time!
You can get remarried if 1st spouse dies, you get a divorce or an annulment.
 Detrimental to children – not good for child’s psychological well-being – having more
than 2 parents may lead to confusion – 2 is all we need.
 Disruption of family harmony – spouses vying for attention, love, resources – anger +
jealousy
 Bureaucratic and administrative difficulties – how do you know who is the spouse for
purposes of intestacy, insurance and taxes?
o Potential for abuse – testimonial privilege being extended to more than 1
person.
o Historical definition of marriage is between 2 people, not more than 2.
o Financial Impracticability – harder to finance many families with 1
income – expenses are way higher, more children
o Gender asymmetry and skewed power dynamic

Bronson v. Swensen (CD UT 2005)


Polygamist Wife (P) v. County Clerk (D)
Facts:
 A Utah husband and wife wished to bring a second wife into their relationship.

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Family Law Outline

 After the husband completed the application, the county clerk denied him and the second
woman a marriage license because Utah prohibits plural marriages.
Holding: The right to privacy and other individual constitutional rights do not protect polygamist
marriages.
 State has a compelling state interest in banning plural marriage. Not a violation of
privacy b/c not regulating sexual conduct – just regulating marital conduct.
Counterarguments why there is NO state interest for restricting polygamy:
1. Constitutional, fundamental right to marry – does not limit # of marriage partners you can
have – also, it is a complete bar to marriage with that person – you cannot change the fact
that you are related – like race.
2. Freedom of religion
3. Freedom of privacy
4. Freedom of association
5. Even if it is constitutional restriction – maybe public policy should favor polygamy –
increase # of people who are married, legitimates more children
6. No detriment to family harmony

Sanderson v. Tryon (UT 1987)


Polygamous mother (P) v. Father (D)
Facts:
 Tryon (D) contended that he was entitled to custody of his children because as a matter of
law his children’s mother’s polygamy rendered her unfit to have custody.
Holding: A finding that one parent practices polygamy is alone insufficient to support
denial of custody of children.
 A finding of polygamy does not preclude custody unless it can be shown not to be in the
best interests of the children. Moral character is one of many factors to consider.

Thompson & Freeman – Good Housekeeping Article –


Men have multiple wives, but women do not have multiple husbands. There is a lot of
pressure/coercion not to leave or seek help outside polygamous relationships. Grossly unequal
distribution of power in the marriage  abusive
 State police power + channeling function – want to organize relationships in pairs and
with monogamy.
 Monogamy = fabric of our society. State can impose reasonable regulation on rights to
promote the health, safety and general welfare of its citizens.
Elizabeth Joseph – Dallas Morning News Article –My Husband’s Nine Wives: polygamy
enables women to meet their career mothering and marriage obligations by making less demand
on time. Support network w/other wives.
 Not detrimental to child development
 Polygamous relationships allow her to do it all
Elliot – NYT Article –Three Men and a Woman: Emotional difficulty with being in a
relationship who is married and dating someone else. While he loves her it is difficult.
Anderson Cooper Report on Pro-polygamy rally
 Polygamy is not necessarily gender skewed

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Other Restrictions on Getting Married


 States place a # of restrictions on fundamental right to get marry, e.g.

33
Family Law Outline

NY Dom. Rel. Law §7: Voidable Marriages. A marriage is void from the time its nullity is
declared by a court of competent jurisdiction if either party thereto:
 Is under the age of legal consent (18), provided that such nonage shall not of itself
constitute an absolute right to the annulment of such marriage, but such annulment shall
be in the discretion of the court which shall take into consideration all the facts and
circumstances surrounding such marriage;
 Is incapable of consenting to a marriage for want of understanding;
 Is incapable of entering into the married state from physical cause;
 Consent to such marriage by reason of force, duress or fraud;
 Has been incurably mentally ill for a period of 5+ years.
Void marriages never occur- voidable allows the state to declare them void.

AGE
States place restrictions on age at which people may marry. For example:
NY Dom. Rel. Law §15 requires consent where one party is under the age of majority to give
consent on his own behalf.
 Age is a voidable (not void) restriction on marriage. Parental or judicial consent needed.
 There is a rational basis for the restriction
 Justifications for Age Restriction on fundamental right to marry:
o Not a complete ban on marriage – only temporary prohibition – asking
parties to postpone decision. Infringement is not so severe.
o Rights of children are not the same as adults:
 Children = peculiarly vulnerable
 Children are unable to make critical decision in an informed and
mature manner
 Parents have a right to rear their children.
o Protecting minors from immature decision-making
o Preventing unstable marriages
o Paternalistic state power to protect and promote welfare of children who
lack capacity to act in their own best interests.
Reasons why Age Restriction on right to marry is unconstitutional:
o Arbitrary age requirement not based on actual preparedness for marriage.
Moe v. Dinkins (SDNY 1981)
Unmarried minor mother (P) v. The State (D)
Facts:
 Maria Moe (P), 15 year old, and the father of illegitimate child wished to marry to cement
their familial relationship and to remove the stigma of illegitimacy from their child.
 Maria’s mother refused to consent- Maria sued contending the law was unconstitutionally
depriving them of their equal protection
Holding: State regulation of marriage of minors is constitutional. There is a legitimate
justification and rational basis for the restriction. It is a delay, not a deprivation.
 NY Dom. Rel. Law §15 requires parental consent to the marriage where one or both
parties are underage. Parental consent for men 16-18, women 14-18. Judicial consent for
women 14-16.

Rappaport v. Katz (SDNY 1974)


Bride (P) v. City Clerk (D)
Facts:

34
Family Law Outline

 Rappaport (P) claimed that her constitutional rights were violated by rules regarding
dress and the exchanging of rights that had been promulgated to cover weddings
conducted by the city clerk, Katz (D).
Holding: The federal courts should not get involved in supervising marriage forms and
procedures in city clerks’ offices, which are an area fundamentally of state concern.
 Federal judges have too much to do to become involved in this type of dispute

PHYSICAL INCAPACITY
NY Dom. Rel. §7(3) – marriage is voidable if one spouse has incapacity to enter into married
state for physical cause.
 It used to be that certain diseases were complete barrier to marriage – i.e. epilepsy.

DURESS
 Marriage is a relationship into which 2 individuals enter upon freely and voluntarily. If it
was formed under duress – it is voidable.
 Look at circumstances surrounding marriage + request for annulment
 Look at duration of marriage
Lester v. Lester (NY 1949) –
Wife (P) v. Husband (D)
Facts:
 Family law professor argues that his marriage should be annulled because it was entered
into under coercion/duress.
 He felt that if he did not marry his wife, she would have killed herself. They were
married for 10 years.
 Wife wants legal separation + support – not annulment or divorce.
Holding: Pre-nuptial agreement where husband asserts that he is not bound by the obligations of
marriage and that it is taking place against his wishes – this prenuptial violates public policy.
 This marriage was NOT formed under duress – husband is trying to abandon wife and
avoid paying her support.
Antenuptuals which purport to violate the marriage are not enforceable.

FRAUD
If a spouse enters a marriage based on the fraudulent misrepresentations or omissions by one
spouse, the marriage is voidable.
Essentials or Essence of Marriage Test
 Marriage is voidable if the fraud goes to the essence of the marital relation.
 This is an objective conclusion
 The fraud must be about a core characteristic related to marriage to justify an
annulment – not mere disappointment in result.
 The marriage is SO based on a lie or fraud that it merits returning the parties to the
pre-marital state.
Johnston v. Johnston (CA 1993)
Facts:
 Unhygienic, unattractive , sexually unappealing drunkard husband fraudulently
represented himself to be an attractive, polite, sober person during courting period.
 Wife is requesting annulment of the marriage based on fraud.
Holding: Court denies annulment holding that the fraudulent statement must go to essential
aspects of the marriages and the hygiene and manners of spouses is not an essential marriage
issue.

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Family Law Outline

 Essentials of marriage = reproduction, concealment of prior marriages, serious


physical/mental disorder, criminal activity, citizenship.
Advantages: Avoids trivial claims (i.e. he doesn’t shave or he is bad in bed), upholds the sanctity
and permanency of the marital relation.
Disadvantages: Not functional - lies that don’t go to the essence of the marital relationship may
have been very important to the spouse – maybe wouldn’t have married if she had known that
fact.

Objective Materiality Test


 Marriage is voidable for fraud if the fraud was material to the party requesting the
annulment.
 Subjective test

Kober v. Kober (NY 1965)


Facts:
 Mrs. Kober married an Anti-Semite, did not know this before marrying him
Holding:
 Mrs. Kober is granted an annulment because it was material to her that she marry
someone who is not virulently anti-Semitic; husband deliberately hid his disposition
from her. Had she known that her husband was practically a Nazi, she would not have
married him.
Advantages: gives effect to the desires and wishes of the participants in the marriage, especially
where one person lied to the other, provides an exit route if a spouse has been lied to.
Disadvantages: after-the-fact assessment – it is easy to say that what your spouse is during
marriage is not what you wanted AFTER the marriage has already been entered into.

Objective-Materiality Test
 If a reasonable person would find the complained-of characteristic enough that the spouse
would not have married if she had known, then there are grounds for an annulment.
o Both objective and subjective
Objectivity = whether a reasonable person would find that the spouse would be subjectively
bothered by the fraud.
Advantages: Would eliminate trivial claims, but allow material characteristics to remain. Allows
an escape route because many people present themselves differently when dating than when
married.
Disadvantages: There are some things that are not serious or core enough that they are grounds
for annulment. All reasonable people want to marry the best people possible.

T. v. M., 242 A.2d 670 (New Jersey Sup. Ct. 1968)


Facts:
 Husband wants divorce because claims that wife cannot have sex because of
psychological problem.
Holding: Court grants divorce
 Wife is impotent- tried to seek medical help, annulment was brought within a reasonable
amount of time.
_____________________________________________________________________________

Sex and Gender


How do you determine sex of transgender and transsexual people for purposes of marriage?
Birth/Chromosomal/Gonad/Genital Sex

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Family Law Outline

 Your birth sex is your sex for life and there is nothing one can do to change it.
 Chromosomes, gonads, genital, psychological
Advantage: Clear applicable line, Aligns marriage with procreative abilities.
Disadvantage: Excludes % of population with chromosomal abnormalities and who don’t have a
clear sex (XXY, XYY). It is also possible for chromosome makeup to be different than external
genitalia – which is confusing.
Problem: potential equal protection claims from transsexuals for infringement on fundamental
right to marry. 2 people cannot get married if their birth sex is the same OR if their presentation
sex is the same.

Littleton v. Prange (TX 1999)


Transsexual M-) F v. Doctor
Facts:
 MF transsexual (sex reassignment surgery, name change, birth certificate, sex function
– medically a woman) does not have standing to sue doctor for wrongful death of her
husband.
Holding: Court holds that P (Christine) was a man for purposes of marriage and therefore the
marriage between Plaintiff and deceased was void. Court adopts biological test of sex –
original birth certificate determines gender. Male chromosomes do not change with sex
reassignment surgery, P is male.
Littleton DISSENT – Birth sex was changed on the birth certificate – amendment replaces the
original – realizes that there may be mistakes. Should have gone to trial, not as a matter of law,
as to gender of P.

Psychological/Presentation/Self-identity/Functional Sex
Psychology determines gender – a person is the sex that he/she thinks she is and holds
him/herself out to be (functional).
Advantage: Encompasses 100% of population, recognizes identity of all people.
Disadvantage: Discourages procreation within marital context because people’s gender identities
are not connected to procreative capacities.
 There is a different test for gender of parent for purposes of custody and child support
than the test for marriage! BIOC will prevail!

M.T. v. J.T. (NJ 1976)


Transexual Male to Female (M) v. Husband (D)
Facts:
 MF (surgery + birth certificate change) = female for purposes of marriage. Couple
lived as husband and wife – had sex. MT (tran) separated from JT and is requesting
support. JT contends that the marriage was invalid under state law because MT was
really a male.
Holding: A person may become a member of the opposite sex if a sex change operation
successfully alters the physical structure so that he or she may function as a member of that sex.
Husband cannot assert she was not a female.
 A transsexual person with surgery is the gender he/she feels to be for purposes of sex for
marriage.
 NJ adopts functional view of sex. There must be some physical concordance or steps
to bring physical sex and gender identity into accord.

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Family Law Outline

 There are different definitions of sex for different contexts/purposes. For example, sex
for purposes of driver’s license or birth certificate is different than definition of sex
required for marriage.

Can 2 people of the same sex get married?


Arguments AGAINST same-sex marriage:
 No fundamental right to marry someone of your own sex. There is only a fundamental to
marry someone in context of a heterosexual relationship.
 Same sex couple marriage is not so deeply rooted in the collective conscience of America
so as to recognize a fundamental right.
 It is a permissible and consistent restriction on the right to marry – like polygamy,
incest, or age requirements.
 Hernandez – affirms no fundamental right to marry opposite sex – fundamental right is
subject to reasonable government restrictions. No backwards looking right to same-sex
marriage.
Marriage is an area subject to state regulation.
 Channeling function. State is trying to channel people with procreative potential into
marriage. Marriage is meant to create children, which is not possible in same-sex
marriage.
 Stable and lasting marriages. Gay people are more promiscuous and less able to stay in
relationships.
 Marriage = protection against accidental procreation. It is designed to give protection
to couples who accidentally procreate. This danger is not present in gay couples. Gay
people are going to have children intentionally because they can’t accidentally.
o Marriage is defined as union between 1 woman and 1 man. 2 people of
same sex just cannot marry.
o Same sex marriage is against statutory law and public policy. Majority
of people think that same-sex sexual relations are immoral and should
not be encouraged. State laws also reflect this public policy.
o BIOC advise against same sex marriage
 Need both genders for role models
 Societal bias against same-sex parents might injure child
o Right to marry is not about children – it is about parents.
Prohibiting same sex marriage is NOT an equal protection problem.
 There is no equal protection problem. Loving and Zablocki are limited to fundamental
right to marry – not due process.
 If there is an equal protection claim, it is subject to rational basis review – which it would
pass. Hernandez applies rational basis review.
Hernandez – there are state interests for prohibition on gay marriage = stability in potentially
procreative couplings and BIOC to be raised by 2 opposite-sex parents. Not good reasons, but
rational reasons – legislature could find these reasons to justify the law.
 Even if there is heightened scrutiny, equal application theory
would prevail because there is no evidence of sexist supremacy
in the way that white supremacy made equal application theory
unusable in Loving.
Hernandez (NY 2006) – Ban on gay marriage is constitutional. No equal protection
argument. For sex discrimination  men and women are treated equally in that neither can

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Family Law Outline

marry someone of his own sex. Therefore, equal application would satisfy the scrutiny because
there is no evidence of sexist supremacy. For sexual orientation discrimination  not a suspect
class, not required to have heightened scrutiny.
 Even if it is subject to heightened scrutiny, there are compelling
state interests that justify the infringement.
• Protecting health + welfare of children
• Fostering procreation in marital setting
• Securing recognition of state marriages in other states
• Protecting public from burdensome costs
o States cannot afford extending costs and benefits of marriage to
everyone.
o Slippery Slope. If you allow same sex restriction to slide, so will all
other restrictions against polygamy, incest, etc.
Baker v. Nelson
Minnesota Law banning same sex marriage is not unconstitutional because there is a fundamental
difference in sex and states can make restrictions on right to marry.

Arguments FOR same-sex marriage:


 Fundamental right to marry (Loving, Zablocki, Turner) is a broad right.
 Impermissible restriction on right to marry – no plausible or rational state interest in
denying it. Circular logic is the same logic used to reject interracial marriage and other
suspect classes – those arguments were wrong.
 There is a history of fundamental right to marry being denied to certain classes of people,
but later changed.

Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)


Facts:
 Seven Same-Sex (P) couples sought marriage licenses in Massachusetts, but the
Department of Public Health (D) denied the licenses.
 The couples (P) challenged the constitutionality of the marriage licensing statute that
denied all same-sex couples the right to civil marriage.
Holding: The Massachusetts constitution forbids the creation of second-class citizens and
therefore may not deny the protections, benefits, and obligations of civil marriage to same-sex
couples wishing to marry.
 Legalized same sex marriage in Massachusetts. Fundamental right to marry is
meaningless if you don’t have the right to marry the person of your choice (subject to
appropriate government restrictions). But there is no good reason for the restriction on
same-sex marriage.

Equal Protection argument – denying same sex marriage = discrimination on the basis of sexual
orientation or sex.
 Question = strict scrutiny.
o Hernandez DISSENT would apply heightened scrutiny for equal protection
problems and fundamental right infringement.
 Even if rational basis, it would still fail.
o Goodridge v. Dept. of Public Health (MA 2003) – Legalized same sex
marriage in Massachusetts. Prohibition on same sex marriage fails rational

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Family Law Outline

basis review. There is no conceivable reason for the prohibition other than pure
animus.
 Even if there are rational reasons for the law, law is not carefully tailored to achieve those
interests.
 State channeling function channels people into marriage with no regard for actual
procreative capacity. Sterile and infertile heterosexual people are allowed to marry, but
not homosexuals who have procreative capacity, just not with each other.
o Hernandez DISSENT: Even if there is a rational reason for the law, the law does
not promote that reason. It is not narrowly tailored to accomplish those interests.
Sex Orientation: Similarly situated straight people can get married to someone they love, whereas
gay people cannot.
 Hernandez DISSENT (Kaye) – embraces sex and sexual orientation
discrimination arguments!
Sex: Man cannot marry a man, because he is a man. Reminiscent of Orr v. Orr (alimony right
extends to men). Men can do things women can’t do and vice versa. .
o Right to privacy. Government should not be involved with who you
should or should not marry. (Griswold v. Connecticut, Lawrence v.
Texas).
o Right to free association. Marriage is an association between 2 people.
People should be free to choose who you want to associate with and in
what way you will do so with someone of same sex.
o Right to free exercise of religion. Weak argument – but religious right to
marry who you love. Cite polygamy cases, but they come out the wrong
way.
o Public policy and common law definitions of marriage shift over time.
While historically, marriage was defined between 1 man and 1 woman,
this definition could change as social mores change. Also, an appeal to
common law definition does not answer question of whether it is
constitutionally permissible for marriage to be defined in this way.
 Goodridge v. Dept. of Public Health (MA 2003) – Legalized
same sex marriage in Massachusetts. Court changes common
law definition of marriage to include same sex couples.
Common law definition of marriage conflicted with
Massachusetts Constitution. Also – allowing same sex couples
to marry fits with the channeling function – same sex marriage =
people in lasting relationships that provide emotional, sexual
support – the exact purpose of the channeling function in the first
place. Getting married for same reasons as straight couples!
o Morality cannot be the sole justification for preventing same sex
marriage. See Lawrence v. Texas.
o BIOC for parents to be married. That such marriage would stir social
biases that might affect child indirectly is not a valid argument to prevent
marriage (Palmore v. Sidoti).
o People of same sex can adopt and co-parent – in effect, can form
families. Gay parents are fit parents – no adverse effect on kids.
i. States have begun to pass marriage amendments to their constitution
in order to avoid answering the question of whether same sex
marriage violates the state constitution.

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Family Law Outline

______________________________________________________________________________

VI Common Law Marriage, Alternatives to Marriage and “Non-Marriage”

Annulment = process whereby a marriage is erased, so that it is like it never happened.


 Void = marriage that simply, as a matter of law, is impossible to have happen
(i.e. cannot marry a dead person, a fictional character, or an inanimate object).
 Voidable = marriage that has some infirmity, but is not so crazily impossible (i.e.
marrying someone under legal age, incest) or there is some other reason why it
should not be given legal effect (i.e. drunkenness, incapacity).
COMMON LAW MARRIAGE
1. Only 16-17 states currently recognize common law marriage. NY is not one of them.
2. Common law marriage is a real marriage – and its participants get the benefits and
obligations of it, including divorce (there is no such thing as “common law divorce”).
3. The common law path to marriage is different than licensed marriage – it is non-
ceremonial, non-bureaucratic.
3-Prong Test for Common Law Marriage
 present, mutual intent and agreement to be married
 continuous cohabitation
 public declaration that the parties are husband and wife

Common Law Marriage:


 Have to show that there was intent and agreement to marry, cohabitation, and public
declaration that married- holding out- presenting yourself to the community that you were
married
o Historical Justification: Nobody close-by that could perform the marriage
In Re Estate of Love (2005)
Decedent’s son v. Mother’s Estate (D)
Facts:
 Decedent, Barbara Love and Darryl Arnold held themselves out as husband and wife
although they never legally wed.
 After Love died , her son, Bertrand Love (P), disputed the existence of a common-law
marriage between Arnold and Love.
Holding: A common-law marriage may be found when a man and woman cohabitate and hold
themselves out as husband and wife, such that society views them as married.

Dershowitz – “To Fix Gay Dilemma, Government Should Quit the Marriage Business” –
 Civilian institutions/the State should provide civil unions for everyone and leave
“marriage” to religious institutions.
 Decouple the civil and religious components of marriage – state should not decide who
gets holy sacraments.
 Problem = will all the problems incident to marriage be transplanted to civil unions?
Zelinksy – “Government Should Get Out of the Marriage Game” –
 Deregulate marriage entirely and make marriage a religious or cultural institution with no
legal consequence.
 “Marriage” should be privatized and contractual in nature – which is the trend in modern
matrimonial law anyway (pre-nuptial agreements).

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Family Law Outline

 Different groups and communities will develop their own contracts (with different
benefits/obligations) to which couples adhere when they marry – and then those will be
enforced as contracts. Each couple decides the essentials of their marriage.

PUTATIVE MARRIAGE
Definition: putative spouse = someone in good faith believes that he/she is married. The
marriage is given legal effect for the exclusive purpose of protecting the spouse who is not at-
fault for making the marriage invalid in-fact.
 Distinguished from common law marriage because there is no mutual intent to be married.
COHABITANT RELATIONSHIP
 Unmarried cohabitants may contract with each other in the same way that any other 2
people may. The main restriction on cohabitation agreements is that they are not binding
insofar as they concern sexual services b/c that amounts to prostitution – and contracts that
violate public policy will not be enforced.
 Advantage: Cohabitating partners have greater freedom of contract than married partners.
This is because state is a 3rd party in any contract between spouses and the contract must
balance the interests of all 3 parties. E.g. cannot give up duty to support, to take care of
children.
 Disadvantage = Cannot contract for all the benefits achieved by marriage (i.e. divorce
process, tax benefits, inheritance rights).
 Marvin v. Marvin (CA 1976)SEE ABOVE under contracts – Legal relationships
(contractual, implied and express, and quasi-contract, quantum meruit remedies) arise
out of cohabitation arrangements even though the parties are not married. Opens the
door for cohabitation contracts. Established the idea of “pal-imony.” ∏-woman asserts oral
contract  ∆-man told her that he doesn’t believe in marriage, but if she lived with him, gave
up her career, he would give her half of everything he earned. They split up and he didn’t
give her anything. Agreement between non-marital couple are valid – fail only to the
extent that they are ONLY sexual services. Here, it was not just about sex – she performed
domestic tasks as well. Remanded for determination of whether a contract existed.
COVENANT MARRIAGE
 A covenant marriage is distinct from a regular marriage in that regular marriages may be
dissolved with no fault. Covenant marriage requires a complete and total breach of the
marital covenant and then the non-breaching party can move to derecognize the marriage.
 Iron-clad marriage – lifetime commitment that is very hard to dissolve.
 To get in: must have counseling
 To get out: examples of total and complete breaches of marital covenant = adultery, serious
felony, abandonment, abuse, separation for 2 yrs
 Louisiana Covenant Marriage Statute – La. Rev. Stat. 9:272

SAME SEX MARRIAGE


 Massachusetts/Connecticut
 Allow same sex couples to marry
 Opinions of the Justices to the Senate (MA 2004) – Legislature certified a question to
Supreme Court of Massachusetts. Civil unions are insufficient to satisfy the Massachusetts
Constitution’s requirements for equal protection with regard to same-sex marriage. Civil
unions create second-class citizens – separate but equal is NOT equal (2 separate regimes for
the same benefits is unconstitutional). There is no rational reason for distinguishing between
same-sex and opposite-sex unions.

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Family Law Outline

 DISSENT: there is equality in substance – it is just a difference in semantics.


There is a rational basis for the difference in name – same-sex marriage in MA
will not be recognized for federal purposes or in other states, but may be more
likely to be recognized if called a “civil union.”
 Depends on how you construe Goodridge – majority says it is about same-sex
marriage, dissent says it is about giving same-sex couples the same benefits as
married couples.
 NJ Supreme Court decision re: same-sex marriage (2006) – 4-judge plurality held that it is a
violation of equal protection clause of NJ constitution to not allow same-sex couples the same
panoply of rights afforded to opposite-sex couples. State legislature had 180 days to decide
how equal benefits are to be extended to same-sex couples (full marriage rights, civil union,
or abolish marriage and give civil unions to everyone).
 DISSENT – There is an equal protection problem, but also a fundamental rights
problem. Court should have ordered NJ legislature to give full marriage rights to
same-sex couples.
NJ ordered domestic partnership/
4. CIVIL UNION
 CT, VT
 Legislative solution that gives same-sex couples equal benefits of marriage while reserving
“marriage” for 1 woman and 1 man – in effect, a mirror legal institution with all the same
rights and benefits, but not name of, marriage.
 Vermont Civil Union Statute
 15 V.S.A. §1201: Civil union gives 2 eligible persons the benefits and
protections and responsibilities of spouses. §1201(4) specifically defines
marriage as between one man and one woman.
 15 V.S.A. §1202: To be eligible for civil union – cannot be a party to another
civil union or marriage; must be of the same sex (only people excluded from
marriage).
 15 V.S.A. §1203: No incest civil unions.
 15 V.S.A. §1204: (a) Parties to a civil union shall have all the same benefits,
protections and responsibilities under law (statute, administrative, policy,
common law) as are granted to spouses; (b) civil unions are included wherever
law refers to family, spouse, kin, etc.; (c) duty of support is in civil unions; (d) all
pathways for dissolution are open to civil unions (annulment, separation, divorce,
child custody and support, equitable division of property, maintenance); (f) rights
of civil union parties with respect to children = same as for married couples.
 15 V.S.A. §1205: Parties to civil union can make pre-nuptial agreements that
modify the terms of their civil union in the same way married couples can –
cannot modify essentials.
 15 V.S.A. §1206: Dissolution of civil unions = same procedure as dissolution of
marriage.
DOMESTIC PARTNERSHIPS
 Expansive: NJ, CA
 Definition: domestic partnership = 2 individuals choose to live together in an
important personal, emotional and economic relationship. (familial)
 Certain rights and benefits should be made available to domestic partners – i.e.
visitation, decision-making rights in health care setting; tax-related benefits;
health + pension benefits.

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Family Law Outline

 NJ – Domestic Partnership law has certain requirements (common residence,


joint finances, joint responsibility for living expenses, not married or in another
domestic partnership, no incest, only open to people of the same sex or are both
over 62, mutual caring, at least 18 years old, file Affidavit of Domestic
Partnership). DP can be modified via agreement – but cannot contract around
law. DP can be terminated (same procedure and benefits of divorce) –
“adultery,” abandonment, extreme cruelty, separation for 18 months, drug
addiction, mental institutionalization, imprisonment. Domestic Partnership
between people over 62 ends if one party gets married.
 Limited: NY, ME
 NYC – same sex couples can go to city hall, fill out form, and get a certificate.
Domestic partnership comes with almost no benefits though!
 Maine – there is a list of things domestic partners can do – less restrictive than
NYC, but not as expansive as CA and NJ.
RECIPROCAL BENEFICIARY
 Designed to provide for relatives (blood or adopted) to have a relationship that gives rights to
its participants in the same way that married or civil-unionized people have. Possibly done
for the elderly or people who are not married.
 Only single persons may enter reciprocal beneficiary relationships.
 Policy = everyone ought to be able to have 1 person to contact in case of emergency. It is an
option for people who are not married, nor in a civil union, nor in domestic partnership to get
benefits.
 Hawaii
• Very weak list of things reciprocal beneficiaries can do
 Vermont
 Vermont Reciprocal Beneficiary Statute – 15 V.S.A. §1301-1305
• Relationship serves limited purpose – gives its participants benefits,
protections and responsibilities of spouses only in certain areas that are
outlined in the statute – medical (decision-making, POA) and abuse.
• Over 18, not in another Reciprocal Beneficiary, Civil Union or marriage,
must be related by blood or adoption (cannot get married), mutual consent.
• Dissolution may be unilateral.
______________________________________________________________________________

GETTING OUT OF MARRIAGE


Two Views of Divorce:
1) Divorce = simple legal dissolution of the marital relationship only (simple).
2) Divorce = final proceeding to disentangle the parties from each other in all aspects so
they can each lead their own separate lives in the future. There is judicial efficiency,
more equitable results, clean divorce, and it prevents possibility of double recovery if
there are 2 trials for the same issue. However, this approach adds fault into an
otherwise no-fault regime.
Twyman v. Twyman (TX 1993)
Wife (P) v. Husband (D)
Facts:
 Sheila Twyman (P) added an action for infliction of emotional distress to her divorce
petition because he made her engage in weird sex stuff.
Holding: An action for intentional infliction of emotional distress may be joined with a divorce
suit.

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Family Law Outline

 The required elements are: (1) the defendant acted intentionally or recklessly; (2) the
conduct was extreme and outrageous; and (3) the actions caused the plaintiff to suffer
severe emotional distress.
 Claims related to marriage, but apart from the marriage may be joined with the
divorce claim.
Twyman CONCUR/DISSENT – if you allow emotional distress claims to be joined with divorce
actions, you have essentially returned to fault-based divorce.
• Divorce is a benefit of marriage! It streamlines division process so parties do not have
to go to civil court, housing court, etc. to determine what belongs to whom.
• Divorce is different than annulment.
o Divorce = dissolution of marriage; separation of property.
o Annulment = as if the marriage never happened; no separation of property
• Divorce is also different from separation
o Separation = temporary period during which parties live apart to contemplate the
marriage. As a legal construct, it is meant to facilitate the parties’ reunification.
Actions that are committed during the separation period may be grounds for
divorce. As a social construct, separation is viewed as a precursor or
steppingstone to divorce, but this is not the legal definition of separation.
I. Old Divorce Law
• Divorce had to be granted by legislature in a separate legislative act.
• Divorce highlights the fact that marriage is a contract between 3 parties (the 2 spouses
and the state). The couple must go to court and ask the state’s permission to end the
marriage.
o State has an interest in preserving marriages – not divorce. They might make it
harder to get a divorce because it forces the parties to seriously evaluate their
relationship. Not every rough patch is a justification for divorce.
o State might also have an interest in the divorce if there are children, because state
is charged with responsibility of guarding welfare of its children.
II. Traditional View of Divorce
• Fault-based divorce = innocent party had to prove fault grounds – that (s)he had been
wronged by the other party in such a serious way that the marriage was undermined.
The wrongfully-acting party could then assert a defense. The court may then decide
to grant the divorce to the innocent party.
o Advantage of fault-based divorce: protects women and gives them a
bargaining chip if husband wants to leave (will not ask for a divorce unless
they receive certain compensation in the asset distribution process). Protects
less-moneyed spouses. Preserves family values, relationships that are bad
enough will get a divorce, huge source of business for the matrimonial bar.
o Disadvantage of fault-based divorce: people who really want a divorce
cannot get one – even if they are miserable and unhappy in their marriage. A
victim spouse could keep wrong-actor spouse in the relationship by refusing
to file for divorce.
• Fault is instrumental in determining the financial consequences of the
dissolution – the spouse at fault for the marriage break-up will be penalized in the
division of the assets and the custody of children (or rather the spouse not at fault will
be favored). Equitable distribution of assets has a lot to do with who is at fault.
• Hard to get a divorce under fault-based regime. Conceivably – even though both
parties want a divorce, they could not get it.
o Keep the parties out of marriage pool.

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Family Law Outline

o Wedding vows state “for better or for worse.”


o If you make it really easy to divorce – marriages that might otherwise be
workable will be ended before parties can reconcile.
• Although many jurisdictions have switched over to non-fault based divorce, some
jurisdictions still retain fault-based paths to divorce.
o Some states (like LA) have covenant marriages based on fault divorce
o Some states have both no-fault and fault paths to divorce
o Some states (like NY) still have fault based divorce regime
A. Fault grounds for divorce:
• Cruelty
Benscoter v. Benscoter (PA 1963)
Husband (P) v. Wife (D)
Facts: Benscoter (P) contended that he was entitled to divorce because his wife verbally abused
him for their failure to have a child.
Holding: Cruelty as a ground for divorce is established through evidence of a course of conduct
rather than sporadic episodes.
 Husband requesting divorce on basis of indignities to the person. NO DIVORCE. Wife
with multiple sclerosis verbally abused and blamed husband for their failure to have a
daughter. Her disease explains and excuses her conduct. Acts of a spouse resulting
from ill health developed after marriage do not furnish grounds for divorce,
especially where there are allegations that the spouse requesting divorce has committed
adultery.
Hughes v. Hughes (LA 1976)
Wife (P) v. Husband (D)
Facts: Mrs. Hughes (P) contended she was entitled to divorce on the basis of mental cruelty due
to her husband’s abusive behavior toward her and daughter.
Holding: A divorce may be granted on the basis of mental cruelty.
 Wife requesting divorce on basis of cruelty. YES permanent separation (not divorce,
but level of proof is the same). Husband was cold, indifferent, cursed at and threatened
bodily harm to wife, ordered her to leave the house. Husband’s continuous cruel
treatment of wife constitutes fault.
• Adultery
Arnoult v. Arnoult (LA 1997)
Wife (P) v. Husband (D)
Facts: When Patricia (P) sued for divorce, Elden (D) also filed a petition for divorce, and later
amended his petition to allege Patricia (P) was guilty of adultery.
Holding: A prima facie case of adultery can be made where the only evidence presented is the
testimony of hired investigators.
 Cross-motions for divorce. Husband requesting divorce on basis of wife’s post-
separation adultery. YES DIVORCE. Circumstantial evidence obtained by private
investigators that wife made out with man in car and Taco Bell + both went to his house
at night w/o lights was sufficient to find adultery, even though wife and paramour denied
it.
Legitimate grounds to find fault based divorce:
• Desertion/Abandonment
• Impotence
• Imprisonment
• Felony
• Alcoholism/Addiction
• Insanity

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Family Law Outline

• Neglect
B. Defenses to Fault Divorce
• Lack of innocence – if the requesting party has done something which would
constitute grounds for divorce or is somehow also at fault for the marital problems 
no divorce. You need clean hands to get a divorce.
Rankin v. Rankin (PA 1956)
Husband (P) v. Wife (D)
Facts: Mrs. Rankin (D) contended the trial court erred in granting her husband a divorce because
of his contributory fault in the breakup of the marriage.
Holding: to obtain a divorce on the basis of indignities, it must appear from the evidence that the
plaintiff was the injured and innocent spouse.
 Husband requests divorce from wife on grounds of cruelty and abandonment. NO
DIVORCE. Wife threatened to kill him, tried to run him over with car, lunged at him
w/butcher knife, threw hot water on him. However, wife alleges that husband abused
and was cruel to her as well. Wife’s story is corroborated, whereas husband’s is not.
Nasty household – unhappy marriage, but both parties are at fault for the marital
problems. Mere incompatibility is not grounds for divorce. Husband’s behavior is not
free from fault – he can’t request a divorce.
• Connivance – Plotting, either alone or together, to trap one’s spouse to commit
marital fault and then using that fault as grounds for divorce.
Sargent v. Sargent (NJ 1920)
Husband (P) v. Wife (D)
Facts: Sargent (P) sued for divorce contending his wife committed adultery with his chauffeur.
Holding: A spouse providing the other spouse with the opportunity and inducement to commit
adultery cannot obtain a divorce when such is committed.
Husband requesting divorce on grounds of adultery, but wife’s defense is that there was
connivance. NO DIVORCE! Husband contributed to wife’s adultery w/black servant: he knew
she was attracted to the chauffeur, he left her alone with him, and even after he believed adultery
occurred he continued to employ the servant. Husband cannot participate in course of action
leading to wife’s fault and then assert fault grounds for divorce.
• Collusion
• Condonation
Willan v. Willan (England, 1960)
Husband (P) v. Wife (D)
Facts: The trial court denied Mr. Willan’s (P) petition for divorce on the ground he had condoned
the cruelty he had charged.
Holding: Condonation of cruelty eliminates it as a viable ground for divorce.
 Husband requests divorce on grounds of systematic physical and sexual cruelty, but
wife’s defense is that he condoned each act of cruelty by having sex with her afterwards.
NO DIVORCE. *However, cruelty was directly in response to husband’s refusal to
have sex with her – so he had sex with her so she would stop abusing him.* Court does
not believe husband was truly coerced – he could have left or overpowered her. Court
held that engaging in sexual relations after cruelty constitutes forgiveness and
condonation. Each act of cruelty was condoned by the forgiving sexual act afterwards.
• Recrimination – “Yes, I did the alleged activity, but I did it to protect myself or in
response to something the other spouse did.”
• Insanity
C. Evidence that Judge may use to make determination of fault:
• If there is an explanation for the alleged-fault spouse’s behavior

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Family Law Outline

• Value and veracity of testimony


• Gendered differences – paternalism (protecting wives claiming fault).
III. No-Fault Divorce
• No-fault divorce = either party can go to court and ask for a divorce without a reason.
Usually the parties cite irreconcilable differences, irretrievable breakdown or
incompatibility.
• No-fault divorce revolution came about as a result of several social factors = high divorce
rate, collusive divorce actions, change in social attitudes towards divorce, divorce as a
personal not moral crisis, judicial rigidity led to absurd results, reality was that judges
were being more lenient anyway (constructive definitions of abandonment + cruelty)
• The equitable distribution of assets is affected by fault even though fault is not a
prerequisite for divorce.
• There can be no-fault divorce ONLY – like in California.
o Irreconcilable differences = sufficient grounds for divorce
 CA Family Code §2310: Dissolution of the marriage or legal separation
of the parties may be based on either of the following grounds, which
shall be pleaded generally: (a) Irreconcilable differences, which have
caused the irremediable breakdown of the marriage; (b) Incurable
insanity.
 CA Family Code §2311: Irreconcilable differences = substantial reasons
for not continuing the marriage and which make it appear that the
marriage should be dissolved.
 Uniform Marriage & Divorce Act §§302, 305: Divorce should be
granted if parties meet 90-day domicile requirement AND the marriage is
“irretrievably broken” [parties have either lived apart for 180 days OR
serious marital discord adversely affecting the attitude of one or both
parties towards the marriage]. Irretrievable breakdown = no reasonable
prospect of reconciliation.
o Fault is only applicable insofar as it relates to asset distribution and custody.
Cannot even introduce evidence of fault at divorce stage.
 CA Family Code §2335: In pleading for dissolution of marriage or
separation, evidence of specific acts of misconduct is improper and
inadmissible.
In re Marriage of Kenik (1989)\
Facts: The judgment for dissolution of marriage was entered despite uncontradicted testimony
that the parties had not lived in separate residences for the statutory two year period.
Holding: The requirement that parties seeking dissolution marriage live “separate and apart” does
not mean separate residences.
 Illinois case law has held that “separate and apart” means separate lives rather than
separate residences.
• There can be a hybrid system of both fault-based and no-fault divorce
Massar v. Massar (NJ 1995)
Wife (P) v. Husband (D)
Facts: After the parties had signed an agreement not to seek termination of the marriage for any
reason other than 18 months of continuous separation, Mrs. Massar (P) filed a complaint for
divorce on grounds of extreme cruelty.
Holding: The enforceability of negotiated provisions in agreements between spouse is subject to
review on a case-by-case basis to determine if the application of the provision is fair and just
according to the circumstances of the particular case.

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 highlights the problem with a hybrid system. If the idea behind no-fault divorce is to
correctly describe why the marriage is over, then enforcing a separation agreement that
says there is no fault, when there is in actuality fault, would be enforcing a lie. In a
hybrid jurisdiction, a spouse may give up his right to assert a fault-based ground for
divorce. A separation agreement may limit grounds for divorce.

Diosdado v. Diosdado (2002)


Abandoned Wife (P) v. Unfaithful Husband (D)
Facts: Donna Diosdado (P) sued for breach of contract, seeking liquidated damages as specified
in the “Marital Settlement Agreement” previously signed by both Manuel Diosdado (D) and
Donna (P).
Holding: A contract between a husband and wife proving for liquidated damages in the event of
sexual unfaithfulness is not enforceable.
 The agreement is unenforceable because it ran contrary to the state’s public policy of no-
fault divorce.

Boddie v. Connecticut (1971)


Married Indigent (P) v. The State (D)
Facts: Indigents claimed that a state law requiring court fees for the filing of a divorce action
denied them access to the courts and that the law was a denial of due process as applied to them.
Holding: Under the Due Process Clause, states may not require, as a condition for judicial
dissolution of marriage, the payment of court fees from indigent persons who in good faith seek a
divorce.
 It is unconstitutional to charge people to get divorced

Sosna v. Iowa (1975)


Wife (P) v. State (D)
Facts: Sosna (P) contended that Iowa’s (D) durational residency requirement for divorce decrees
was unconstitutional.
Holding: States may constitutionally provide for durational residency requirements for divorce
decrees.
 Allowing one spouse to obtain a decree in a foreign state would unreasonably infringe on
the other spouse’s right to contest the action.

Twyman v. Twyman (TX 1993) see above


Wife (P) v. Husband (D)
Facts:
 Sheila Twyman (P) added an action for infliction of emotional distress to her divorce
petition because he made her engage in weird sex stuff.
Holding: An action for intentional infliction of emotional distress may be joined with a divorce
suit.
 The required elements are: (1) the defendant acted intentionally or recklessly; (2) the
conduct was extreme and outrageous; and (3) the actions caused the plaintiff to suffer
severe emotional distress.
 Must make sure to not allow double recovery when intentional infliction is joined with
divorce
 Claims related to marriage, but not apart from the marriage may be joined with the
divorce claim.
o Reason for joinder: judicial efficiency.
o Reason against joinder: essentially return to fault based divorce

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Family Law Outline

o Also one of the goals is to get the parties disentangled. So if there are
lurking issues it should be the policy to encourage them to mention the issues
in divorce proceedings.
Twyman CONCUR/DISSENT (Phillips) The court should recognize the tort of intentional
infliction of emotional distress, but should disallow it here because it courts handling divorce
already have discretion to divide community property taking into one party’s extreme conduct.
Dissent/Specter: More expansive than the majority. The wife should be allowed to pursue
negligent infliction of emotional distress which Texas does not allow. Specter would allow it in
interfamilial cases such as domestic violence and sexual harassment.
• New York is the only state that does NOT have no-fault divorce.
o NY Dom. Rel. §170
 (1)-(4) = fault (cruelty, abandonment, imprisonment, adultery).
 (5) + (6) = no-fault like
• (5) = live apart by judicial decree of separation for 1 year
o Judge may not grant decree unless fault is present
• (6) = live apart by agreement for 1 year
o One party may say other did not follow agreement and
prevent divorce.
o
IV. – “Division of Property, Alimony and Child Support
• Division of Property is a 2-step process:
1) Will the divorce be granted?
2) If so, how will the property be divided? (hearing or separation agreement)
• There are 3 issues to resolve about resources upon divorce:
1) Distribution of property
a. Classification of property – what property is in the marital pot?
b. Valuation of property – how much are the marital assets worth?
c. Principles of distribution – who gets what?
2) Spousal Support
3) Child Support
• Equitable is not the equivalent of equal.

A. Standards for Awards


• Must ask 3 questions:
◊ Is this property community property?
◊ If so, how much is it worth?
◊ How and to whom is the property going to be divided?
• There are 5 principles that may guide the distribution of funds upon divorce.
Trial courts have broad discretion to consider any of these factors:
1) Need – each spouse must have enough support to sustain them.
2) Status – each spouse should have enough to continue lifestyle that (s)he
had during the marriage.
3) Rehabilitation – what the less-moneyed spouse needs until she can
become independent (i.e. housewife stayed home during marriage, needs
some money until she can go back to school and build skills to support
herself).
4) Contribution – one spouse may get paid for previous services and
foregone opportunities during the marriage OR compensated for
enhanced earning capacity of the other spouse (i.e. housewife holding

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Family Law Outline

down home so husband can go to law school). Value contributions to the


marriage that are not purely financial.
• Economic contribution
• Contribution to stability/harmony of family and marital
relationship
• Contribution to education, training, accomplishment bearing on
earning power of other spouse.
5) Fault – even in a no-fault jurisdiction, fault may play a role in
distribution of assets – favoring the innocent spouse.
• There are 3 approaches for determining what the marital assets are:
1) Community Property Approach (separate property system)
• DURING marriage, each spouse has 50-50 interest in all property acquired
during marriage (except for gift, devise or inheritance to one spouse);
separate property acquired before the marriage and gifts, etc. are the property
of only that spouse. Spouses can agree to label property as community or
separate.
• UPON DIVORCE – community property is divided equitably between
spouses and spouses retain their own separate property.
• Advantage:
• Disadvantage: ignores non-economic contributions to marriage
2) Common Law Majority Approach
• Mimics community property view
• DURING MARRIAGE – title ownership governs.
• UPON DIVORCE – the marital state includes property acquired during the
marriage except by gift, devise or descent. Marital estate property is then
divided between the spouses. All other property is considered separate
property and remains the property of the title owner.
• Court looks to the respective parties’ contributions (indirect and direct
contribution) to the family and the marriage. Can look at stability of family,
maintenance of household, how children were raised and then make an
equitable evaluation. A court may award property legally owned by 1 spouse
to the other spouse, recognizing that a non-working spouse’s efforts
contribute to the acquisition of the marital estate.
3) Common Law Minority (Hotch-Pot) Approach
• DURING MARRIAGE – title ownership governs.
• UPON DIVORCE – the marital estate includes property considered to be part
of marital state under majority approach AND all or some of the property
considered to be separate property in other approaches. Then the property is
divided between the spouses.
• All property is fair game.
• Factors to be weighed by the trial court in making a property division:
◊ Direct or indirect economic contributions to the accumulation of the marital
estate.

Immerbichler v. Innerbichler (2000)


Ex-Husband (P) v. Ex-Wife (D)
Facts: Husband (P) began a business just prior to his marriage to Wife (D). When making the
property award, the court found the increase to the value of the business was marital property
subject to equitable division.

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Family Law Outline

Holding: In a dissolution, all property is found to be marital unless traced to a non-marital source,
then assigned a value, and all marital property must be equally divided.
 The trial court awarded the wife 2.5 million. The husband argued that the value of the
company before the marriage was more and that it decreased during the marriage.
 Court finds that the husband was responsible for the estrangement of the wife and
adultery and later deserting his wife. The court also considered that the husband had
spent a lot of marital money on his own things during the separation. The court feels like
the husband was trying to reduce the marital property so to give less to his wife.

Thomas v. Thomas (1989)


Facts: Husband and wife each brought separate property into marriage and then increased the
value of that separate property through marital contributions. The court’s attempt to make an
equitable distribution of property resulted in distributing some admittedly non-marital property
between the parties.
 House: Wife made a down payment of 75K. Wife took out a mortgage for 185K before
the marriage and house was titled to wife. House sold for 91K profit. Husband wants
50% of appreciation. COURT: must look to the sources of funds- husband contributed a
small percentage of funds so he should only get small percentage in return.
 Stock Options: Husband had it before marriage but exercised the option during the
marriage. Stock was paid for via a combination of marital and separate funds. Before
divorce, stock was sold for 30K profit.
o Trial Court: Wife should get exposure to investment because she loaned husband
30K before marriage.
o Appellate Court: Wife should only get back what she loaned husband (30K) as
restitution and not a return on investment. The money that she lent him was not
to buy stock but was for him to pay his wife.kids.
Holding: In making an equitable distribution of property, the court must first determine which
property is marital and then equitably distribute only that property while protecting the spouse’s
non-marital contribution pursuant to the source of funds rule.

Ferguson v. Ferguson (Miss. 1994)


Wife (P) v. Husband (D)
Facts: Trial Court awards wife divorce on grounds of adultery, custody of Bubba, marital home
and land, ½ husband’s pension/stock, child support $300/month, $30,000 lump sum equalizing
payment, $400/month alimony, and health insurance. Husband keeps 33 acres property, cattle
operation, farm equipment, mobile home. Even though father had title in a lot of these assets, the
court acknowledges the wife’s non-financial contribution – taking care of child and cleaning
house – to marriage and the accumulation of assets
Holding: A spouse who has made a material contribution toward the acquisition of property
which is titled in the name of the other may claim an equitable interest in such jointly
accumulated property incident to a divorce proceeding.
 Court may look to non-direct economic contributions for purposes of distributing the
marital assets. Court can also consider that the wife needs $ to be rehabilitated b/c out of
work force for a long time.
 Hotch-Potch Approach: will include separate property in the distribution

Siegel v. Siegel (NJ 1990) Gambling Debt Case


Wife (P) v. Husband (D)

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Family Law Outline

Facts: When Mr. Siegel (D) alleged that his gambling losses should be equally distributed at
dissolution, Mrs. Siegel (P) alleged that they were really a dissipation of funds and were to be
borne solely by Mr. Siegel.
Holding: The contribution of each party to the acquisition or dissipation of the marital property is
to be considered in determining the equitable distribution.
 Husband’s gambling debt (incurred during marriage, prior to divorce) is NOT part of the
marital estate. Court makes a judgment call based on facts of case – it appeared that
husband is trying to intentionally diminish the value of the estate – not a bona fide debt.
Gambling debt is owed to a company that husband owns 1/3 of, debt incurred 10 days
after the divorce complaint was filed, and husband forged wife’s signature on tax return.
If a spouse intentionally dissipates the value of the marital estate, that portion will
be taken from the bad acting spouse’s share. Court will look to whether the
expenditure was done in the normal course of familial expenditures or if it was done
intentionally to dissipate the marital estate.
◊ Market value and emotional value of the assets.
◊ Parties’ station in life
◊ If property was accumulated via inheritance or gift to only one spouse
◊ Tax consequences of the proposed distribution
◊ Whether lump sum is possible to reduce future payments and friction
◊ Needs of parties for financial security
◊ Conduct of parties in managing and combining assets during marriage
• How parties act towards and use their money influences how courts decide to
distribute and classify property.
◊ Ages and health of the parties
◊ Duration of marriage

Non-vested pensions and human capital present unique problems for equitable
division of the assets: Are these things “property?” Is it marital property – was it
developed or acquired during the marriage – did non-holding spouse make a
contribution to it? How much is it worth? How is it to be divided upon divorce?
◊ Human capital is marital property only in a minority of jurisdictions! However,
it is increasingly more popular since alimony is less frequent.
◊ Non-vested Pension
 Theory #1: Spouse is entitled to proportional percentage of the pension to the
# of years that she was married to him while the pension vested.
o Present value offset – sum of $ to non-earning spouse in exchange
for earning-spouse keeping the whole pension later. Problematic! If
earning-spouse dies before pension vests, non-earning spouse has $
from pension, but earning-spouse doesn’t! Risk of forfeiture is
entirely on earning spouse.
o Pay in alimony
 Theory #2: Spouse is entitled to ½ because it is an asset acquired during the
marriage
o Community property theory – spouse entitled to ½ of whatever is
acquired during the marriage.
 Theory #3: Spouse is entitled to nothing
o Non-vested pension is a future asset, not a present asset. Spouse is
only entitled to funds if they are married when it vests.

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Family Law Outline

Laing v. Laing (Alaska 1987)


Facts: When their 20 year marriage ended, Kenneth Laing challenged the trial court’s
characterization of his nonvested pension rights as marital property. In 2005 at the time of
divorce, the husband had a vested pension worth 100K. The trial court took a present value
approach and gave the wife offsetting compensation of 20K. Husband objects on the grounds
that he cannot get the money and that the wife should not get pension now.
Holding: A spouse’s nonvested pension rights are properly characterized as marital property.
 Non-vested pension is a marital asset subject to equitable division process, but it is
NOT to paid in either present value or through alimony – the court’s jurisdiction over the
pension distribution is reserved until the pension vests, but the value is calculated as of
the time of the divorce. Essentially, the court has reserved jurisdiction.
◊ Human Capital = time, talent, energy, money that has value for its holder.
Human capital is personal to its holder in that it is non-transferable. Examples =
humor, law degree, celebrity goodwill.
• Theory #1: human capital is not “property” – it is an intangible
characteristic/trait. Cannot value “humor” or “good looks.”
• Theory #2: human capital is not “marital property” – it is personal to person
holding it – not transferable. But lots of intangible, indivisible items are
valued and go into equitable division process.
• Theory #3: human capital is marital property, and spouse without it should be
entitled to compensation for aiding in the development of it.
o The person “acquired” that capital during the marriage
o The non-holder spouse did something to increase the value of the
holder-spouse. Non-holder spouse may have sacrificed or delayed
an opportunity to develop own human capital in order for holder-
spouse to acquire his – and never got the benefits of that sacrifice.
• Problem = how do you value intangible human capital?
o Alimony. Effect on future earning capacity of holder-spouse and is
factored into alimony. Problematic b/c if value decreases or if
holder-spouse decides not to use it – holder-spouse will have to pay
non-holder spouse as if he was using it or keep unwanted job just to
keep up w/alimony payments.
o Equalizing Payment. Effect on future earning capacity of holder-
spouse and is equalized in a lump sum payment.
o Restitution. Non-holder spouse is entitled to get back what she
contributed if she does not get the benefit of her investment.
Niroo v. Niroo
Issue: “whether anticipated renewal commissions on insurance policies sold by a spouse during
marriage but accruing after the dissolution of the marriage are marital property within the
meaning of the Property Disposition in Divorce and Annulment Act.
Pro Hist: Circuit court gave wife part of commission ($200K out of $410K), husband
challenging that part of divorce
Facts: H began working as insurance salesman after marriage. Got $ whenever policies were
renewed. Only policies sold during marriage up for consideration, value=$410K. H had $267K
debt to company, not considered marital debt, but “economic circumstance.”
H’s theory: Commissions aren’t marital property b/c speculative and contingent. Has to nurture
accounts after marriage to ensure commissions, so not “acquired” during marriage. Would
unjustly penalize him if commissions don’t happen.
Holding: Yes, contractually vested rights in commissions are marital property.

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Family Law Outline

Reasoning: K said that even if H dies, right to receive commission passes to heirs/assigns, and
was assignable, not “mere expectancy.” Husband doesn’t really have to do anything to get
commission. Work done when he got the accounts, most automatically renew. Not too
contingent or uncertain to render commissions beyond valuation (insurance co. gives them $
value).
Not uniquely personal to the holder, justifiably relied upon by couple. Vested right not separable
from policies sold during marriage, so part of marital property.
Construe Act liberally.
Debt is encumbrance on future commissions which reduces future value, so trial court should
have subtracted $267K from the $410K

Postema v. Postema (Michigan 1991)


Wife v. Husband
Facts: wife supported husband through law school, dropped her own nursing school career,
moved to where he went to school, also did housework. They divorce when he graduates, gets a
big firm job.
Holding: Husband’s law degree IS a marital asset, is able to be valued and goes into
equitable division process. Court adopts restitution remedy – reimburses wife for cost of the
degree. NOT the difference in earning power because of the degree. But, does not compensate
her for the efforts she made during that time though or the return on a risk she took on an
investment! PERCENTAGE OF VALUE APPRAOCH.

Elkus v. Elkus (1991)


Opera Singer Wife (P) v. Husband (D)
Facts: P. a world-renowned opera star, moved for an order determining that her career value was
not a marital asset subject to equitable distribution in dissolution proceedings with her husband.
Husband (D) claimed that his emotional and career support contributed to Wife’s (P) success,
thus increasing the value of her celebrating and making her career a divisible marital asset.
Holding: Marital property is determined by the nature of the contribution to its value and not by
its status as a licensed or otherwise tangible existence.
 Court gave the husband a share of the wife’s career and celebrity status. It applied a
broad partnership approach even though the husband was being compensated for his
services along the way. And even though he gets a share of the marital assets, it was
primarily based on her income: Restitution.

B. Alimony
*Spousal support is less common now. More common is the idea of lump sum compensation in
the distribution package.
• DEF: Alimony (a.k.a. spousal support, maintenance) = periodic, post-marital
payments from richer spouse to poorer spouse for financial support.
• DEF: Alimony pendent lite = one spouse has no money at all, cannot afford anything
– asks court for an order that more-moneyed spouse pay alimony while the trial is
pending.
• Pensions and human capital are not compensated in alimony payments. Alimony
terminates upon remarriage – so it is almost depriving the non-holder spouse.
• Reasons FOR spousal support:
◊ Derived from the idea that marital obligation/duty of support is for life (extends
beyond divorce – doesn’t end when marriage does). Wedding vows are forever.
◊ Poorer spouse has interest in maintaining lifestyle (s)he had when married

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Family Law Outline

◊ Missed opportunities – if one spouse sacrificed or there was mutual decision that
(s)he would forego an educational or career opportunity in order to take care of
the family/marriage, (s)he deserves to reap benefits of her sacrifice even though
they are not married anymore.
• Out of job market for a long time – lost client base, reputation, opportunity –
too hard to start anew later.
• Harder to go to school when older
◊ It is only fair for both spouses to get some sort of continued exposure to the
opportunity taken by one of the spouses – it is seen as a return on an investment.
◊ Alimony is a way to offset the fact that one of the spouses does not have the skill
set. One spouse walks away with skill set developed during the marriage, and all
that it is worth, and the other spouse walks away with nothing. Even though the
first spouse could not have achieved his skill set without second spouse’s
support.
• Reasons AGAINST spousal support:
◊ Keeps the spouses attached to each other after the divorce has been finalized and
undermines the goal of divorce (to disentangle the spouses financially and give
them a fresh start).
 A spouse may even force ex-spouse to maintain his profession to have the
salary needed to pay alimony.
◊ Spousal support is problematic because of economies of scale (it costs more for 2
people to live apart than to live together).
Uniform Marriage and Divorce Act Section 308: Spousal support only if the poorer spouse is
unable to support itself through appropriate employment. Marital fault is irrelevant.

In re Marriage of Wilson (1988)


Facts: Disabled wife who cannot work is awarded alimony for 5 years after a 6 year marriage.
Holding: In a dissolution judgment, the court may order a party to pay any amount for the support
of the other party for any period of time as the court may deem just and reasonable considering
all the statutorily stipulated circumstances of the respected party.
 Court found that the obligation to assist wife should shift from husband to society
 Short term marriages: spousal support will most usually be ordered where the needs of
minor children require spousal support or until supported spouse can readjust to
employment

Clapp v. Clapp (1994)


Ex-Wife (P) v. Ex-Husband (D)
Facts: When Mr. Clapp (D) was ordered to pay maintenance to his former spouse using an
income equalization approach, he challenged the award as excessive.
 Husband was earning 140K and wife was earning 50K. over 500K in marital assets.
Husband provides 60% of assets to wife and gives wife $2000 a month. Husband argues
that it was the wrong approach and that alimony should only be ordered for her
reasonable needs- does not need alimony.
Holding: The family court has broad discretion in determining the amount of maintenance and
will be reversed only if there is no reasonable basis to support the award.
 Relative need not actual need. Wife would not be able to maintain her standard of living
on her individual salary.
 One purpose of maintenance under the statue is to compensate a homemaker.

56
Family Law Outline

Modification of spousal support: When there are continuing issues of spousal support: the family
court retains jurisdiction until the expiration of the support, one spouse dies, the children become
the age of majority, etc. Can go back to the trial court and seek modification.
• Courts are LESS willing to modify alimony awards than child support awards.
Uniform Marriage and Divorce Act Section 316:
 Modification is pretty difficult to obtain
 Standard: “Changed circumstances so substantial to make the terms of support
unconscionable”
 Most jurisdictions have not adopted this strict approach but usually some sort of weaker
test of a change of circumstance

Graham v. Graham
Ex-Wife (P) v. Ex- Husband (D)
Facts: Mr. Graham’s salary increased dramatically at about the time their divorce decree was to
become final. Wife argues that he should pay more in child and spousal support. Husband argues
that there is no relevant change in circumstance.
Holding: An increase in the noncustodial parent’s ability to pay can, by itself, constitute a
material change in circumstances sufficient to justify an increase in support.
 Much less strict approach: increase in ability to pay in and of itself constitutes change of
circumstance that potentially gives rise to modification.

D’Ascanio v. D’Ascanio (CT 1996) Alimony Modification


Husband v. Wife
Facts: Agreement is that husband will pay wife $700/week until she remarries, then he only pays
$350/week. Wife remarries a poor person so she still needs the money.
Court rejects modification of alimony award, settlement agreement was knowingly
negotiated, and alimony is not as reviewable by the courts as child support.
 Trial court’s initial reduction of only $100 was improper

Separation Agreements
• Separation agreement = agreements made by the parties in anticipation of divorce or
separation that specify how the parties will separate and what financial ramifications
will follow. These agreements will often be incorporated into the divorce decree,
making them binding, subject to modification by the court (especially with regard to
child custody and support issues), on the parties.
• There is strong public policy in favor of enforcing separation agreements
1. Incorporate by Reference: Courts can append separation agreements without claiming
that they reviewed it
 Trial court can only change based on unforeseen change in circumstance
2. Merge: Court is stating that they have read the agreement, think that it is fair, and include
it as part of order as if the court came up with it themselves
 Trial judge can modify it if circumstances change
◊ Massar v. Massar (NJ 1995) See Above– Wife filed for divorce on grounds of
extreme cruelty. Parties had an agreement that in exchange for husband moving
out of the house, the wife would not file for divorce on any grounds other than
no-fault. Agreement was enforced. Absent fraud, duress or
unconscionability, the State has a strong public policy in favor of enforcing
separation agreements. .

57
Family Law Outline

◊ Represents true intentions of parties (don’t have to sell tangible, indivisible items
and split proceeds)
◊ Promotes judicial efficiency and speed
◊ BIOC because it reduces time, stress and animosity between parents if they can
agree.
◊ Cost savings on attorney fees
◊ Adherence – people are more likely to follow an agreement they reached than
one that is judicially imposed.
◊ Privacy is preserved – do not have to air dirty laundry in public courtroom
◊ Reduces uncertainty and increases control re: outcome of divorce due to
subjective judicial bias
• Even if a separation agreement provides for child support and custody
arrangements, courts have the authority to modify these provisions as the best
interests of the child require.
Duffy v. Duffy (2005)
Facts: The Duffys set out the terms of their marital dissolution agreement, including child support
obligations, in a letter, which Mrs. Dyfft’s attorney used to draft a Draft Separation Agreement.
Mr. Duffy signed the letter but not the agreement, but nevertheless abided by its terms for one
year. Mrs. Duffy then sought to enforce the agreement terms when Mr. Duff arbitrarily lowered
his child support payments.
Holding: Parties must abide by the terms of a negotiated and accepted settlement agreement
despite later second thought.

Toni v. Toni (2001)


Ex- Wife (P) v. Ex-Husband (D)
Facts: Wife (P) moved the court to modify the amount of spousal support her husband (D) paid to
her pursuant to an incorporated spousal support agreement that she had previously agreed to.
Husband (D) argued that the court did not have jurisdiction.
Holding: Courts have no jurisdiction over incorporated terms of settlement agreements.
 People are more to agree to a separation agreement that they were part of shaping. If
courts modify them, people will not make their own.

Sidden v. Mailman (2000)


Ex-Wife v. Ex-Husband
Facts: The parties executed a separation agreement setting out the terms of their divorce and each
complied fully with those terms. During the divorce trial, wife (P) asserted that she had suffered
from a psychiatric condition during the execution of the agreement, and she therefore lacked the
mental capacity to agree to its terms.
Holding: Parties to a separation agreement owe a fiduciary duty to one another absent formal
adversarial negotiation of the agreement terms.
 Court did not find undue influence, fraud, etc

Kelley v. Kelley (1994)


Ex-Husband (P) v. Ex-Wife (D)
Facts: The Kelleys executed a separation agreement which was ratified and incorporated into the
final divorce judgment. Husband (P) petitioned the court for visitation and Wife (D) petitioned
the court for child support
Holding: A ratified and incorporated by reference clause of a settlement agreement may be
declared void and thus render the final judgment open to attack and vacation.
 Court retains ongoing jurisdiction over child support and maintenance of minor children.

58
Family Law Outline

Three issues in divorce involving children:


 Child Custody:
Legal v. Physical
Sole v. Joint
 Visitation: can have many constratints
 Child Support:
C. Child Support
• DEF: child support = amount of money paid by non-custodial parent to custodial
parent to help pay for child’s expenses and needs.
• How do you determine how much child support is due?
◊ Federal legislation requires states to adopt child support guidelines to receive
federal funding for support of children.
◊ States have developed 3 child support guidelines:
1) Percentage Income Approach
• Non-custodial parent pays a % of his income to custodial parent.
• % income is proportional to # of children–more children, higher %
• 1 child = X%, 2 children = Y%, 3 children = Z%, etc.
2) Income Shares Approach
• Non-custodial parent pays a % of the $ needed from joint income to
raise child to the non-custodial parent.
• Income of non-custodial parent OVER combined income of both
parents (non-custodial parent pays a % of the cost of raising the child
is proportional to the ratio of his income to joint income).
• N-C parent makes $5,000, C parent makes $10,000  N-C parent
will pay 33% (5,000/15,000) of child’s expenses.

3) Melson Formula (a.k.a. Delaware Formula)


• Designed to account for poverty and people living below minimum
subsistence levels – realistic approach for poor people who may not
otherwise be able to pay obligations.
• If both parents above the poverty line  amount of income above
basic subsistence level is available for child support per income
shares model.
• If one parent is below the poverty line  that parent does not have to
contribute child support, and burden is on other parent
• If both parents are below the poverty line  income shares
approach, both have to contribute something
◊ There is a presumption that the guideline calculation is correct. But this
presumption is rebuttable. A court may diverge from the formula if it results in
unjust results.
• Court can take into account various factors – i.e. disproportionate expenses
based on location, if child has costly medical needs
Hypo:
Number of kids: Percentage to be paid
1 20
2 25
3 30
4 35

59
Family Law Outline

Husband salary: 1000 month


Wife salary: 3000 month
Trial court agrees that there should be modification because he should now only be
paying for two kids.
Husbands theory is that I am earning a small salary- under guidelines I should be paying
my wife 25 percent of guidelines but my wife has one non custodial kid- she should be
paying 20% for that one kid.
Since wife is earning more- husband would get 350 a month from wife. I used to be
paying 300 a month in child support- now I should be paying 350- but she should be
paying me 600- which would leave me with 350.

In re Marriage of Bush (Illinois 1989)


Mother (P) v. Father (D)
Facts: Both parents = rich doctors. 20% would be 5K for this child which would mean that it
would be going to Wife is custodial parent. Trial court orders father to pay $800/month child
support (6%) and the rest ($4,200) into a trust fund for the child according to the guidelines.
Both parties appeal. Husband argued excessive child support obligations – Wife argued that
husband would not be setting aside this $ if they were married!
Holding: Where individual incomes of both parents is more than sufficient to maintain
lifestyle and needs of the child, the court may diverge from guideline amounts.
 Court set it at 6%

Schmidt v. Schmidt (SD 1989)


Mother (P) v. Father (D)
Facts: 3 sons, separation agreement – mother has custody of all 3, father pays child support
$375/month. Mother makes a lot more $ than father does. Father gets custody of 1 child,
requests modification of child support obligations. According to the child support guidelines,
because of income disparity, he should receive money from mother even though she is caring for
2 children and he is only caring for 1. Mother says father’s child support obligation should be
reduced to only paying for 2 children. The other option is having father pay for 1 child (cancel
out).
Holding: Appellate court remands for trial court to make specific findings that would justify
deviating from guidelines to prevent the absurd result (and inadequate for BIOC) of mother
paying father.
• If a parent’s income changes, he may petition the court for a modification based on
material change in circumstances. However, if the change in income is due to a bad
faith action on the part of parent designed to avoid paying child support, courts will
apply imputed income theory.

Three Issues that arise in child support:


 Post Secondary Education
o What if parents of the children agreed to make post-age of majority contributions
to the child. The problem is that the family court might lack jurisdiction if the
child is no longer of appropriate age

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Family Law Outline

 Contempt proceeding: If the court at one time had jurisdiction, can go


back to the court and argue that a court order is not being followed
 Breach of Contract: Start over again in a different court: the contract that
came out of the divorce proceeding was broken
o Equal Protection Violation from allowing courts to say that you must support
your kids past majority: If your parents are married they are not required to pay
for your education so it puts divorced kids at a better advantage,
 Imputed income theory – if a court thinks you are intentionally earning less money, it will
impute to you the income you should be earning. Used when a parent has the capacity to
earn more, but makes a bad faith move not to earn his potential. Parent is forced to pay
child support based on the income he would have been receiving had he not left his job.
Courts will look to whether there was a good faith job change (i.e. too long of a
commute, dangerous occupation).
 Child support as affected by other familial shifts: see below
• How long does child support last?
◊ Parties may contract for child support obligations beyond the age of majority –
failure to pay child support = breach of contract
Solomon v. Findley (AZ 1991)
Ex-Wife (P) v. Ex-Husband
Facts: Contract w/divorce (dissolution degree) providing that husband would pay educational
funds through college or until child is 25. Husband failed to provide post-majority-education
funds.
Holding: A provision for post-majority educational support does not merge into the dissolution
decree, but remains independent and enforceable as a contract claim.
 Contract claim for child support obligations past age of majority survives even though
child passes age of majority.
◊ Court retains jurisdiction over support obligations until the child reaches the age
of majority – could extend time period to allow support proceeding
◊ Could allow child to bring a contract action as a third party beneficiary.
Curtis v. Kline (1995)
Father (P) v. State (D)
Facts: Father (P) contested the constitutionality of Act 62, authorizing a court to order divorced,
separated or unmarried parents to provide equitably for the educational costs of their children,
even after they reach 18 years of age.
Holding: A state law which distinguishes between children of married and divorced, separate or
unmarried parents for the purpose of authorizing a court to order the parents to provide equitably
for the post-secondary educational costs of the child is unconstitutional under the equal Protection
Clause of the 14th Amendment.
• What happens with child support if there is temporary shift in custody?
◊ Does custodial spouse pay her portion of child support to the non-custodial
parent who temporarily has custody (i.e. summer, vacation)?
◊ Do you reduce the non-custodial parent’s annual contribution by % of time when
he has the children?
• Who is a parent for purposes of paying child support?
◊ A child can only have 2 legal parents (2-parent maximum!). At most, child can
have 2 legal parents and 2 de facto parents.
◊ De Facto Parent – person who is not legally a parent, but acts like one via
caretaking and is treated of and though of as one by the child, may be awarded
visitation, custody or obligated to pay child support.

61
Family Law Outline

◊ Step-parent Adoption – step-parent can legally adopt a child of his spouses


from before the marriage as his/her own (biological parent must relinquish his
parental rights) and be obligated to pay child support.
◊ Second-Parent Adoption – a parent of the same sex as the biological parent may
legally adopt the child too. Exception to general rule that a child can only have 1
parent of each gender. Second-parent is liable for child support.
◊ Marital Presumption – child conceived and born during the marriage is
presumed to be the child of the husband and wife, even if not biologically true.
The presumed parents are liable for child support.

Full Faith and Credit for Child Support Orders – 28 U.S.C. §1738(B) – Each state shall enforce child
support orders of other states. The child support order is valid if there was proper SMJ, PJ, and reasonable
notice and opportunity to be heard.
◊ Cannot run and hide in another state to avoid child support obligations.
• Can a child support order be modified?
◊ Family courts retain jurisdiction of child support orders. If there is a material
change in circumstance, one of the parties may move to modify child support
order.
◊ A court may modify a child support order due to changed circumstances even if
the parties have made a prior agreement about it.
◊ Clear examples of material changes in circumstance =
• Change in child’s needs
• Change in child’s health
• Change in schools
• Parent loses job – can’t pay OR gets promoted – can pay more
Graham v. Graham (DC 1991) – Increase in non-custodial parent’s salary justifies a
modification (increase) of the child support award. If you lost job, award would be reduced.
Children bear burden of decrease as well as benefit of increase.
◊ Clear examples of NOT material changes in circumstances
• Developed a heroin addiction
• All money to Nintendo
◊ A new child in a non-custodial parent’s life does might constitute a material
change in circumstance.
Ainsworth v. Ainsworth (VT 1990)
Facts: husband pays custodial wife $70/week for 2 kids. He gets remarried  new wife, step-
child. He wants to pay less money for biological kids bc he has obligation to support new step-
child.
Holding: Expenses for a second family may enter into the determination of child support for the
preexisting family, even where the second family consists of a spouse and a stepchild.
 The new expenses of wife and step-child are a consideration that may play a role in
trial court’s determination in new child support award for the biological children.
However it should be noted that the obligation to support a step-child is voluntary and
there is no formal duty to support a step-child.
Little v. Little (1999)
Facts: Father resigned from full-time employment to become a full-time college student. He then
sought a reduction in his child support obligation, claiming his student status constituted a
sufficient change in circumstances to justify the modification.

62
Family Law Outline

Holding: A court should not apply a good faith standard in determining a downward modification
in a child support obligation based upon an obligor’s voluntary decision to leave full time
employment.
Three approaches to imputed income:
1) Good Faith Rule
a. If you leave your job in good faith effort to improve your career long term, then
support will be reduced
2) Strict Rule: will really scrutinize: Rare circumstance that support will be reduced because
the court knows that you could be making a larger sum of money
3) Middle of the Road test: Provides the court with the most discretion: Allows the court to
really examine the party’s reason for leaving their job.
*In this case, the court adopts the middle of the road test. The court says that father thought he
could make more money in the long run as a lawyer than he could make in the air force.
***Imputed Income Theory: Whenever there is a change of circumstance, that is an important
tool
Child Custody
• Custody = legal responsibility for the child
• Physical custody = who has the child under his or her care
• History
• Common law preference for giving custody to fathers.
• Tender years doctrine –preference for mothers getting custody for children of
tender years. Strong custody preference for mothers over fathers.
◊ This is a bright line rule – maybe better for nasty custody battles to have
a default rule to apply, especially if both parents are fit – it is a tiebreaker!
• Movement now towards eliminating gender asymmetry..
◊ In practice, women are still more likely to get custody than men, but
courts are not citing tender years doctrine. Maybe result of internalized gender
norms OR social realities.
• Original custody determinations are made in the Best Interest Of the Child. Courts
will look to a variety of factors – and make a decision based on totality of the
circumstances. No one reason is controlling, but they are all factors.
• Child’s relationship to parent
• Health and welfare of child
◊ Emotional, social, moral, educational needs
• Home environments
• Parent’s care-taking ability (age, character, stability, mental/physical health)
• Past evidence of abuse
• Stability
• Continuity
• Sex + age of the children
• Child’s preference – IF based on mature, intelligent, rational reasons
Bender v. Bender (1982)
Facts: Dad had custody of kid (Heather)-Mother paying child support for Heather $25 a week.
Mother gets pregnant with another kid-Nicole and father was not Nicole’s bio dad. Mom
successfully suspended her support obligation for Heather so that she could reamin home with
Nicole.
Holding: A parent’s decision to remain at home with a young child, the nurturing parent doctrine,
is not an automatic exception to the support obligation.

63
Family Law Outline

Imputed Income Theory: when determining each parent’s responsibility to provide support for
children, we should look not at actual income but at potential income
 This is the Father’s Argument: It is clear that mother has potential to earn income and
provide some child support
 Mother’s Argument: In-Kind Contribution: There is the notion that parents who stay
home to care for kids get a pass (essentially they are providing child care costs)
 They are immune from imputed income because they are providing services for the
children that are serious contributions
 Problem here: she is providing NO care to Heather (Bender
Junior)- She is only providing care to the second child

Important Theories from this case:


1. Imputed Income Theory (See Above)
2. Nurturing Children is a kind of in-kind contribution to child support (See Above)
3. Subsequent Familial Responsibilities: Should she be allowed the trade off contribution in
order to make in kind contribution to kid #2?
a. This argument is seen in the Bender case above and in the Aimsworth Case:
i. Aimsworth: Father was providing child support, marries a woman who
has kids, he wants to reduce child support contribution to first kid so that
he can contribute more to new kids, he has subsequent family
responsibilities
1. Dissent in Aimswoth: stepchild should only get money after the
first child is provided for
In the Bender Case: the three theories come into conflict: mother could be earning more money if
she went out and got a job- could be contributing $16 per week- BUT, she wants to stay home to
take care of kid #2

The court in the Bender Case appears to be stereotyped about womens roles: there is a sexist
presumption that dad could be providing for kid and its fine for mom to stay home
 Tender Years Doctrine: Presumption in favor of mother to get custody of young kids
o Default was that mother would get kids
o Has been ruled unconstitutional
o Trial judges are deeply influenced by this stereotype
o Stein thinks that this is the core of the Bender case: the court thinks that it is
best for the mother to stay home with second kid- and mothers income was
so little anyway- father can easily provide
Miller v. Miller (1984)
Mother (P) v. Stepfather (D)
Facts: Mom (P) had two minor children from a previous marriage when she married Miller (D).
After they divorced, she sought child support from Miller the stepdad (D).
Holding: A divorced stepparent may be liable for child support to former stepchildren based on
equitable estoppel.
 Stepparent’s support obligation is voluntary and arises from the stepparent’s standing
in loco parentis. Equitable estoppel claims require that intentional actions occur
resulting in anticipated reliance to the relying party’s detriment.
 Pendent elite support awards are appropriate where the moving parent demonstrates
no financial assistance from the other biological parent and stepparent’s active
interference in the relatship between the child and the other biological parent.
Johnson v. Louis (2002)

64
Family Law Outline

Mother (P) v. Father (D)


Facts: Louis (D) provided financial support for his son, Jared, with his girlfriend, Johnson (P).
Johnson (P) sought to have the support order modified to include post-secondary educational
support after Jared turned 18.
Holding: Children of unmarried parents are not discriminated against by having court-ordered
support pursuant
Custody modifications must demonstrate material change in circumstances. It is harder to get a
modification than original custody b/c non-custodial parent is battling against stability and
continuity considerations.
◊ Mere change in physical abilities of parents does not establish material
change of circumstances.
◊ CHANGE OF CIRCUMSTANCE
UNIFORM MARRIAGE AND DIVORCE ACT
SECTION 402: Best Interest of the Child
 They look at interaction of child with parents
 Childs adjustment to the home/school/community
 These are factors that everyone looks at
- No modification for two years unless there is serious threat to the health of the children.
- No modification unless the moving party can show a substantial change in circumstances
- Custody should not be modified unless the custodial parent agrees, the non custodial parent is
integrated into the custodial parent’s family or the current arrangement presents serious risk.
What constitutes serious risk? What constitutes change in circumstance?

In re Marriage of Carney (CA 1979)


Father (P) v. Mother (D)
Facts:
 Father gets custody, mother disappears. Father cohabitates w/another woman. Tragic
accident – father = paraplegic.
 Mother moves for custody modification, asserting that it is in the BIOC to be with physically
mobile parent who can play sports, bathe, walk with them.
Holding: A physical handicap that affects a parent’s ability to participate with his children in
purely physical activities may not by itself be used to deny custody.
 Physical handicap is NOT presumptive evidence of unfitness or even of probable
detriment to children. While physical well-being of the parent is a relevant factor, it
is not determinative of custody decisions. Father is still the better parent, even in light
of his disability – has a bond with children, offers stability and continuity, and teaches
them values and morals.
◊ Change in circumstance does not have to be a specific event.
Hollon v. Hollon (2001)
Facts:

65
Family Law Outline

 Custody of the couple’s minor son was awarded to the father after
allegations of the mother’s homosexual lifestyle arose and became a focal point
of the custody determination. The mother argued that the custody determination
was contrary to the evidence submitted.
Holding: A custody ruling should consider factors related o the “best interest” of the
child, and a finding should be made on each factor.
 Appellate Court tells trial court here are the factors you have to go through the factors
and say who you think should get the kid. Appellate court tells trial court the process
that they should follow. Criticized trial court for focusing too much on homosexuality.
FACTORS: (1) Age, health and sex of the child (2) Primary caretaker before separation. (3)
Parent with the best parenting skills and willingness to be the primary caretaker (4) Parents
employment (5) Parents health and age (6) Relationship between parent and child (7) Parents
Moral fitness (8( Home, school and community record of the child (9) childs preference if age
appropriate (10) Parents stability of home and employment (10) other relevant factors

Carney and Holon: Appellate court: in both cases: TRIAL COURT SHOULD NOT HAVE
FOCUSED ON ONE CHARACTERISTIC AND SHOULD HAVE FOCUSED ON THE BEST
INTEREST OF THE CHILD
• Trial court should have focused on the effect that characteristic had on child

Should the preference of the child matter?


If child is mature and has rational reasons for preferring one custodial arrangement over the
others than the trial court should take that into consideration.

McMillen v. McMillen (PA 1992)


Father (P) v. Mother (D)
Facts:
 When his father told him that he would rather live with him (hated stepfather, lonely,
couldn’t play soccer), Mr. McMillen (P) successfully sought to modify the custody
order, but was later reversed on appeal.
Holding: Although the express wishes of a child are not controlling in custody decisions, such
wishes do constitute an important factor that must be carefully considered in determining the
child’s best interests.
 Conditions warranted a modification of custody from mother to father.

While custody determinations are made in the BIOC, it is important not to infringe upon the
rights of the parents.
• When faced between BIOC and parent’s civil rights – the civil rights will win so
long as the parent is fit.
• Constitution prohibits courts from using race as a factor in BIOC analysis.
BUT practice indicates that while race alone cannot be a factor, insofar as race
may have an effect on the BIOC, race is relevant.
◊ Race used to be allowed as a factor in the custody determination: it used
to be that if parents were different races, child was placed with the parent that
it looked most similar to

RACE:
Old practice: the trial court would follow the rule: does the child look more like the race of the
mother or the father?

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Family Law Outline

Palmore v. Sidoti (US 1984)


Mother (D) v. Father (P)
Facts:
 White mother w/custody living w/black man.
 Non-custodial father seeking custody modification alleging changed circumstances –
child will be teased and harmed by mother’s interracial relationship.
 Trial court terminated Palmore’s (D) custody because, after being awarded custody,
Palmore (D) had remarried a man of a different race.
Holding: A natural mother cannot be divested of the custody of her child merely because of her
remarriage to a person of a different race.
 Changing custody bc custodial parent is in an interracial relationship violates the
equal protection clause – using race as a factor in custody modifications is NOT
justified by state’s interest in promoting the best interests of the child. The effects of
racial prejudice, however real, cannot justify a racial classification removing a child
from custody of mother found to be a fit parent. “Private biases may be outside the
reach of the law, but the law cannot, directly or indirectly, give them effect.” Private
biases associated with race cannot be tolerated or perpetuated by Constitution.
 Although mother wins, never got custody back because father had
custody pending appeal, moved to new jurisdiction, and had continuity
argument on his side
◊ But in practice, race is still very much a factor in terms of its effect on
the child. Race is a proxy for dealing with cultural issues.
Jones v. Jones (SD 1996)
Facts:
 Custody of children given to Native American father despite alcoholism and abuse
history.
 Dawn Jones appealed the court’s award of custody to her former husband, Kevin Jones,
claiming race should not have been a factor in the determination.
Holding: The court may properly consider race in a custody determination as the issues relate to a
child’s ethnic heritage and the more appropriate parent to address that heritage.
 Trial Court said it did not use race in an impermissible way, but there is no real other
explanation for why TC gave custody to father apart from cultural, ethnic, racial
identification. Perhaps broader familial stability, community ties, geographical
continuity…
Kendall v. Kendall (1997)
Wife v. Husband
Facts:
 When Mr. Kendall (D) became a member of a fundamentalist Christian church, his
marriage deteriorated, and Mrs. Kendall (P), an orthodox Jew, filed ofr divorce and
sought to limit the children’s exposure to their father’s decision.
Holding: When demonstrable evidence of substantial harm to the children has been found, a
divorce judgment limiting the children’s exposure to religious indoctrination does not burden the
parent’s right to practice religion under the Free Exercise clauses of the state and federal
constitution.

Virtues of the Default Presumption Approach: Easy, Efficient, Predictable, Channeling, Prevents
judicial bias, evens the playing field, encourages private decision making, finality, less intrusive,
prevents parents from using the child as a bargaining chip

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Family Law Outline

Nuanced Best Interest of the Child Analyses: Uniqueness/Complicated, Child will be a


bargaining chip, Multifactor, Reasoned, deliberate process, distinct role of the judge

Pusey v. Pusey
Facts: The older minor child expressed a preference to live with his father. The court considered
all factors and awarded custody of the older son to the father and the younger son to the mother.
Mother appealed the custody order of the older child.
Holding: Custody order should no longer be based on an arbitrary maternal preference. The
Tender Years Doctrine has been found to be unconstitutional and it promotes outdated
stereotypes. All other things being equal, the father and mother would have equal custody rights
to a minor child

Garska v. McCoy
Facts: McCoy had a baby out of wedlock and lived with and supported the baby without any help
from the father for the first year. Then the child got a respiratory problem and the grandparents
petitioned the courts to adopt the child so that their medical insurance would cover him. The
father then began to send small amounts of child support and filed to gain custody of the child. At
all times the mother lived with and cared for the child. The trial court awarded the father custody
finding him to be more economically stable and having a better demeanor. The mother appealed.
Should a court disregard the sex of the parents and award custody to the primary caretaker?
Holding: A child’s best interest is served by disregarding the sex of the parents for custody
awards. In this case the mother was shown to be a fit parent and therefore she should have
received custody as the primary caretaker.

Joint Custody
Squires v. Squires
Facts: The court awarded joint custody to the parents of a minor child but the mother did not
believe that cooperation was possible due to the hostility during the divorce proceedings.
Is parental cooperation a precedent to a joint custody order I such an order is in the child’s best
interest?
Holding: No – parental cooperation is not a precedent to a joint custody order.

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Dissent – joint custody requires exceptionally mature adults capable of setting aside the
emotional hostility for their child’s benefit. A determination of whether the parents are
emotionally mature and capable should be made before making a joint custody award.

Past Division of Parental Responsibility


Young v. Hector
Facts: Both the mother and the father were working professionals and had hired a nanny. When
they moved the mother continued working and cared for the children with a nanny. The father
neglected to find new employment and was absent for significant periods of time (on a treasure
hunt). The marriage ended and after trial the court awarded sole custody to the mother.
Holding: A custody decision must be based on substantial competent evidence and may not take
into account legally impermissible factors such as gender bias.
Even though gender may not be taken into account – the mother is still a superior parent and
guardian and so the order is affirmed.
Dissent 1 – The parents had agreed that the father would be the caretaker and the children
benefited from the arrangement made prior to the judgment – the trial court considered gender
and without the gender consideration the father would have been considered the primary
caretaker and should have kept custody of the children.
Dissent 2- The default of the mother working such long hours was that the father ended up as the
primary caretaker – that was an arrangement that she clearly agreed to. The father was a good
caretaker and this should have been considered the primary caregiver even though the mother was
the one earning the income.

Joint Custody
- Takes two to decide
- Animosity becomes a big problem

Sole Custody and Liberal Visitation


- Asymmetrical power
+ Easier on the kids

Hassenstab v. Hassenstab
Facts: The father requested that the court modify a prior custody determination (that awarded
custody to the mother) awarding him custody of his daughter – the mother was a homosexual and
the father argues that she was unfit to retain custody. The district court dismissed his application
and ordered an increase in child support.
The father tries to paint a picture of the mother’s instability – not necessarily the sexuality but her
depression and drinking. But that was years ago, so does this really affect the child?

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Holding:
Holding: The party seeking modification of child custody bears the burden of showing that a
material change in circumstance has occurred.
 homosexuality of the mother does not qualify.

Wetch v. Wetch
Facts: The mother and father stipulated that the mother would have sole custody rights and the
father would have liberal visitation rights. The mother later sought to move to another state and
the father objected seeking a change in custody. The mother may or may not have tried to commit
suicide long ago.
The court wouldn’t consider any conduct of the parents prior to the divorce. The court awarded
the father physical custody of the two kids – the wife appealed.
The court will weigh more heavily on the current evidence, but will admit past evidence if it is
important.
Holding: A trial court must consider pre-divorce conduct on a change of custody motion if the
original custody order was by stipulation of the parties.

Relocation
Baures v. Lewis
Mother (P) v. Father (D)
Facts: The wife filed for divorce which included a request to move their minor child from their
home in NJ to WI – the husband opposed the request.
Holding: In a removal action, the custodial parent must establish the prima facie case with a good
faith reason for the move and demonstrating that the move will be in the child’s best interest.

*Its much easier to communicate these days – email, video chat, etc. i

---------------------------------------------------------------------------------------------------------------
Mediation/ADR in divorce:
Advantages:
 Less adversarial
o Do not want child to have to chose between parents
o Want to encourage a collaborative relationship
o Empowering/ encourages parents to be active agents
 Less Costly
 More likely to follow
Disadvantages:
 Trial is more serious
 Harm weaker party
 Lack of focus
 Discovery

Kelm v. Kelm (2001)


Husband (P) v. Wife (D)
Facts: Wife (D) agreed with husband (P) in their judgment of divorce to submit any disputes
between the parties regarding child custody or visitation to an arbitrator.
Holding: In a domestic relations case, masters of child custody and parental visitation are not
subject to arbitration. Only the courts are empowered to resolve disputes relating to child custody
and visitation. Any agreement to the contrary is void and unenforceable.

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Crupi v. Crupi (2001)


Husband (P) v. Wife (D)
Facts: Desmond moved to set aside the Mediated Settlement Agreement based on fraud and
unfairness claims.
Holding: A post mediation agreement may only be set aside on grounds of fraud,
misrepresentation in discovery or coercion.

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Visitation
• Visitation = spending time with the child (non-custodial parent can still visit).
• Restricted visitation = visitation with some restriction on it (i.e. cannot go to Church
w/child, cannot talk to child about X subject).
• Supervised visitation = specific restriction – non-custodial parent can only see the
child when he is in the presence of someone else who will supervise the activity (i.e.
police officer, social worker, family member). Restriction can be very severe (i.e.
only at child’s home at a particular time w/custodial parent present).
• DEFAULT VISITATION RULE: It is in the BIOC to maintain a continuing
relationship with the non-custodial parent or other important figure in child’s life (i.e.
de facto parent, grandparent, relative).
• Uniform Marriage and Divorce Act
Eldridge v. Eldridge (2001)
Facts:
 Julia and Anthony Eldridge divorced and agreed to share custody of their two minor
daughters. Julia entered into a cohabitating homosexual relationship with Lisa Franklin.
 Anthony was awarded sole custody with visitation rights granted to Julia.
 Anthony then objected to his older daughter’s overnight visits with her mother if Lisa
was present and sought to have Lisa’s presence restricted durint the visits.
Holding: A trial court may properly restrict noncustodial parental visitation rights in the presence
of a nonspouse if the restrictions are in the child’s best interests and the appellate court should
affirm the trial court absent a finding of error.

Zummo v. Zummo (1990)


Noncustodial Parent v. Custodial Parent
Facts:
 After their divorce, Mrs. Zummo (P), the custodial parent and a Jew, obtained a court
order prohibiting Mr. Zummo (D), a Roman Catholic, from taking their Jewish children
to Catholic religious services.
Holding: A court may not restrict a parent from exposing his children to his religious practices
unless the activity substantially threatens to harm the children, and the restriction is by the least
intrusive means possible.
 Stein’s Problem with holding religious agreements to be unenforceable: If parents reach an
agreement, we want them to be enforced. Want to encourage stability and continuity in the
kids- this is threatened if we don’t honor parent’s agreements.

Troxel v. Granville (US 2000)


Paternal Grandparents (P) v. Mother of Child (D)

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Facts: The Troxels are the grandparents of 2 girls of their son – by a woman who he never
married. The son died and the grandparent wanted the right to visit their grandchildren more often
than permitted by the children’s mother. The trial court granted visitation to the grandparents. It
is important for the children to have a continued relationship with the grandparents.
 Broad Visitation Statute: any person could petition for visitation at any time -Paternal
grandparents petitioned for visitation
 Mothers best argument: I should get to decide what is in the best interest of the child:
courts should give great deference to that
Holding: O’Connor: custodial parent has a constitutionally protected liberty interest in the
custody/control of the children
 Visitation abrogates those rights by giving trial court unblank restrictions to blank
 SC invalidates broad Washington statute that permits any person, at any time, to petition
the court for visitation rights and that the court can grant it based on BIOC. Custodial
parents have a fundamental right (liberty interest) to make decisions about their
children’s care. Court-ordered visitation infringes on that right – sometimes justified
(medical attention, education), but in general, court should not place limitations on a fit
parent’s decisions re: the care of her children.
Dissent 1 – The court has never held that a parent’s liberty interest is so inflexible as to establish
a shield protecting every parental decision from challenge absent a showing of harm.
Dissent 2 – Legislators are the proper parties to argue that the state may not interfere with
parental authority over their children’s upbringing – not the courts.
Dissent 3- The state Supreme Court erred in implying that courts cannot apply the best interest
standard in third-party visitation cases and must apply a harm to the child standard.

*Family law is an area ripe for judicial bias b/c of discretionary nature of TC judgments.

Kinnard v. Kinnard (Stepparents)


Father (P) v. Stepmother (D)
Facts: Husband and wife divorced and the court awarded shared custody of the father’s biological
daughter from a previous relationship to both parties. The father wants to have no visitation with
the ex wife – this would radically shift the situation for the kid.
Holding: Courts should evaluate custody disputes between a third party and a biological parent
with the “detriment to the child” standard.
 The evidence was uncontroverted and overwhelming that Kristine would suffer
psychological damage if Debra (D) was removed from life. This does not conflict with
Troxel because child’s loss of stepmom would have had devastating affect.

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Simons by & Through Simons v. Gisvold (1994)


Psychological Mother (P) v. Biological Mother (D)
Facts: The wife sought custody of her 9 year old stepdaughter after her husband died – but the
biological mother also sought custody.
Holding: A biological parent’s custodial rights trump a psychological parent’s custodial rights
absent a finding of detriment to the child if the psychological parent is denied custody.
 The shift is not so radical – there will be no harm because the child will maintain a
relationship with both “mothers”
 An appropriate biological parent should receive paramount consideration over a third
party even if that party is a psychological parent to the child.

Quinn v. Mouw-Quinn
Stepfather (P) v. Mother (D)
Facts: The court awarded visitation with the three minor children to the father. The daughter
however was not his biological child. The daughter had never known another father and was not
aware of the circumstances of her birth. Her mother argued against the father’s visitation with the
daughter.
Holding: Courts may grant stepparent visitation when such visitation is in the child’s best
interests and under extraordinary circumstances.
Dissent - A non-parent seeking custody must definitively demonstrate the unfitness of the
biological parent before proceeding. When the biological parent disputes visitation of a non-
parent with the child the same showing should be made. There was no claim of the wife’s
unfitness.

Unmarried Persons
Stanley v. Illinois
Unwed Father (P) v. The State (D)
Facts: Peter lived with Joan intermittently for 18 years but they were never married so when she
died the statute declared that their three illegitimate would be wards of the state.
Holding: All parents are constitutionally entitled to a hearing on their fitness before their children
are removed from their custody, and denying such a hearing to a particular classification of
parents is violative of the Equal protection Clause.
 The procedure of taking the kids out of the household failed to examine the fitness,
needlessly risking “running roughshod” over the important interests of child and parent.

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Family Law Outline

Lehr v. Robertson
Unwed father (P) v. Husband (D)
Facts: Lehr knocked up Robertson and she married someone else – he never supported the child
and rarely saw her. He didn’t put his name with the NY State putative father registry which
would have entitled him to notice of any adoption proceeding concerning the child. Robertson’s
new husband adopted the child. Lehr challenged the order claiming that he was not notified of the
adoption even though the court knew about his paternity action.
Holding: Due Process does not require that notice be given in all cases to a biological father of
the pendency of an adoption proceeding concerning the child.
Dissent – Any parental relationship whether biological or emotional is constitutionally recognized
and protected – the adoption order deprived Lehr of a constitutionally protected interest – he
should be notified and be heard before the order is granted finality.

VC v. MJB (2000)
Psychological Mother (P) v. Biological Mother (D)
Facts: VC and MJB were lesbian lovers. MJB was artificially inseminated and had twins. VC
acted as the psychological parent of the twins and sought joint legal custody and visitation when
she and her lesbian lover ended their relationship.
Holding: When the legal parent willingly encourages any third party not related by blood or
adoption to develop a psychological parent relationship with the child, visitation will be awarded
to that psychological parent, unless visitation is shown to cause physical or emotional harm to the
child.
Four part test for a parent-like relationship
1. Must be an equal co-parent
2. Must live in the same household
3. Biological Parent fosters the other parent’s establishment of parent like relationship
4. Psychological parent must live in the same household, assume the obligation of
parenthood, and must have been a significant bonding period between the parent and
child.
If this is established then the third party stands in parity with the legal parent.

Titchenal v. Dexter
Dexter adopted a child during her same sex relationship with Titchenal. Dexter and Titchenal
intended to raise the child together but Titchenal never adopted her. The relationship ended and
Titchenal sought visitation rights.
This is a situation of a psychological parent.
Could have adopted the child but did not.
A court may not consider a claim for visitation pursuant to its parens patriae equitable powers
absent statutory authority.

JURISDICTIONAL ISSUES
• Family law is primarily state law – NOT federal. Federal courts refrain from using diversity
jurisdiction to adjudicate issues of divorce, separation and custody = domestic relations
exception.
• Various states may have an interest in the familial relationship by virtue of marital res
theory. The idea is that “the marriage” is a piece of property that can be located where the
parties got married, but conceptually travels with the people in the marriage to wherever they
go. More than 1 state involved.

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Family Law Outline

• Full Faith and Credit Clause of the Constitution (Article IV, Section 1): “Full faith and
credit shall be given in each state to the public acts, records, and judicial proceedings of
every other state. And the congress may by general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and the effect thereof.”
o Requirement of interstate recognition of sister state judgments.
o FFC based on common law principle of comity: if there is a fair and full trial in front
of a court of competent jurisdiction, that decision is valid, so long as it does not
violate public policy.
 Avoids duplication of judicial resources
 Provides finality to successful litigants
 Creates stability and uniformity among national and international forums.
o Example: McMillen v. McMillen – Wyoming court issued divorce and awarded
custody to mother. Pennsylvania court must recognize this determination without re-
adjudicating the issues, but may then modify it as if it had been determined in its own
state.
o Public Policy Exception to FFC: States have an obligation to recognize marriages
and divorces made in other states unless doing so would violate public policy.
 There are real issues when a discrete decision must be made where the result
might be different depending on which jurisdiction the action is brought.
• A court must recognize judgments made in other states only if the court had competent jurisdiction.

Handout about state laws regarding same-sex marriages (additional reading)


Handout about state laws / amendments denying recognition to same-sex relationships
(additional reading)

Many states have residency requirements in order for there to be jurisdiction to bring a divorce
action in their state courts.
o Some states make it easier to get a divorce in their state than others (divorce mill).
Generates tourism, court fees, attorney fees, and population increases.
o Some states prefer to keep it hard to obtain a divorce. Avoids anti-family reputation
and fraud, reserves court system for true state citizens.
o Consequently, people seeking divorce may find one jurisdiction more favorable
because it will take less time or it is easier to obtain one (in the case of fault vs. no-
fault).
Durational residency requirements are a permissible restriction on divorce jurisdiction.

International decrees ought to be recognized by the states in the same way that other states’
decrees are recognized. This is because of the principle of comity.

Martinez v. County of Monroe, 850 N.Y.S.2d 740 (NY App. Div. 2008)
Married Partner in Canada
This is about marriage in NY. Martinez actually married her partner in Canada – a question of
comity.
NY has a broad notion of comity – it will recognize valid marriages from other jurisdictions
unless it violates public policy or natural law – this does not do that.
NY is the minority approach – recognizing a same sex marriage from another jurisdiction.

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Present jurisdictions have the ability to modify court orders from sister states.
Vanderbilt v. Vanderbilt (US 1957)
Facts: Marriage  CA, separated, wife moved to NY. Husband filed for divorce in NV – default
divorce decree (but wife had notice). Wife then sues for alimony in NY (PJ over husband b/c
property).
Holding: A state is obligated to five full faith and credit to a sister state judgment only where the
sister state judgment was entered pursuant to that state’s exercise of vbalid personal jurisdiction
over both parties.
 While FFC requires NY to recognize NV divorce decree, NY has the power to
modify its terms. The parties are divorced, but the part of the NV decree that
extinguishes the wife’s right to alimony violates NY public policy and cannot be
enforced. NY court accepts decree in total, but modifies it.
o However, recent federal uniform laws were passed to eliminate the problems of
interstate recognition and enforcement of alimony and child support (Uniform
Interstate Family Support Act – which conditions receipt of federal funds on adopting
laws which recognize child support orders across state lines).
o There is also more uniformity in state divorce laws now than before.

JURISDICTIONAL ISSUES RELATED TO SAME-SEX MARRIAGE


• Defense Of Marriage Act (DOMA) (1996) = explicit policy exception to FFC for marriage.
FFC does not require states to recognize same-sex marriage or rights/claims derived from that
relationship.
o Defines marriage for purposes of federal law as between 1 man and 1 woman.
o Asserts that no state shall be required to give effect to any public act, record, or
judicial proceeding of any other State respecting a relationship between persons of
the same sex that is treated as a marriage or right or claim arising from such
relationship.
• Is DOMA unconstitutional? MAYBE. DOMA authorizes states to do something that is in
violation of the FFC of the Constitution, but then again, it merely gives states a license to do
what the public policy exception to FFC already says they can do – mere codification of
public policy.
• Marriage Protection Amendment = proposed, but not passed, amendment to U.S.
Constitution that would limit marriage in all states to 1 man and 1 woman. If this
amendment were passed, it would:
o Eliminate constitutional doubts about DOMA – states don’t have to recognize same
sex marriage; and
o Make it unconstitutional for any state to recognize same-sex marriages or civil
unions.
• While no federal action has been taken, there has been a lot of state law action
o 33 States prohibit same-sex marriage via statute
 Mini-DOMAs: that particular state does not have to recognize same-sex
marriages
 Constitutional worry – maybe statutes will be challenged on equal protection
ground
o 6 States prohibit same-sex relationships w/benefits of marriage via statute
o 8 States have prohibited same-sex marriage via state constitutional amendment

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o 19 States prohibit same-sex relationships w/benefits of marriage by constitutional


amendment
 Constitutional amendments eliminate worry that statutes will be invalidated
 Virginia Constitutional Amendment (2006)
 A marriage between anything other than 1 man + 1 woman is invalid
in VA
 VA will not recognize same-sex marriages performed in other states
 No towns or cities can make laws to the contrary
 “No legal status for relationships of unmarried individuals that
intends to approximate the design, qualities…of marriage.” Targeted
at civil unions, RB, but also any other types of relationships that
might be created in future
 Texas Constitutional Amendment
 Marriage = 1 man + 1 woman
 Cannot create “any legal status identical or similar to marriage” (no
CU)
 Poor drafted statute – language seems to abolish marriage although
intended to eliminate relationships that approximate marriage. State
cannot recognize any legal status “identical to” marriage.
• Many states do not recognize civil unions/reciprocal beneficiaries/Marriages performed
in other states.
Wilson v. Ake (2005)
Lesbian Partner (P) v. Circuit Court Clerk (D)
Facts:
 Wilson (P) and her lesbian partner, Schoenwether (P), sought to have their Massachusetts
marriage recognized in Florida. Wilson challenges the constitutionality of the Federal
DOMA and Florida statutes prohibiting same sex marriage.
Holding: The U.S. constitution does not protect a person’s right to enter into same sex marriage.
 Plaintiff attempted to interpret Full Faith and Credit Clause as requiring all states to
recognize same-sex marriage because Massachusetts legalized same sex marriage.
o This interpretation would result in a single state making national policy.
 DOMA appropriately regulates the tension among states having two diametrically
opposite laws.
o DOMA treats men and women equally in not allowing same-sex marriage.
o Therefore, only a rational basis review is required.
o Government has a legitimate interest in encouraging relationships that allow for
procreation and homes with two biological parents raising children.
 Supreme Court precedent that same sex marriage is not a fundamental right. Lawrence v.
Texas did not address same sex marriage.

Burns v. Burns (GA 2002)


Facts: Couple divorced – per consent order: father gets custody – mother (lesbian) gets restricted
visitation. Mother cannot have overnight visitation if there is an overnight visitor or she is
cohabiting with an adult with whom she is not married to. Wife gets civil union in VT. Husband
says violation of consent order b/c wife not married to other woman. Sustained!
Holding: Civil union is NOT a marriage. Even if same-sex couple was married, the public
policy exception to FFC kicks in and GA has public policy against same-sex relationship

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recognition; DOMA governs. Wife raised her right to raise right to privacy argument by
agreeing to terms of the consent order.
 Wife didn’t, but could have, made argument that relationship w/partner is in
BIOC.

Langan v. St. Vincent’s Hosptial (NY AC 2005)


Facts: 2 men civil union in VT – moved to NY. 1 man died – car accident, hospital fucked up, he
died. Survivor wants standing to sue as a spouse for wrongful death under NY EPTL.
New York should apply comity and recognize civil union under Vermont Law and let wrongful
death suit as Vermont would
Appelate Division: reversed:
 Vermont has very little interest in this case. This is a case of a NY resident.
 Vermont did not marry them nor did it intend to marry them.
 We might give comity to same sex marriages, but they were not married
 Not allowing langfan to bring wrongful death action is sexual discrimination action
 Judicial Restraint – whether civil union partner is spouse is question for legislature
Comity does NOT apply because of public policy exception – NY has a

public policy against recognizing civil unions. NY does not recognize civil
unions – NY doesn’t know what it is except that it is NOT a marriage.
 Comity – VT civil union is a spouse-like relationship and civil union
partners get to bring wrongful death actions in the same manner that
spouses do. There is no public policy exception because NY does
not have explicit statement of policy against same sex marriage (In re
May’s Estate). NY ought to recognize that VT relationship allows
him to bring wrongful death action.
 Spouse only refers to a person in a marriage.
 Civil union is NOT marriage and only married spouses have right under
EPTL.
 NO equal protection argument – EPTL’s use of “spouse” passes rational
basis review.
 Equal Protection – refusing to recognize ∏ as surviving spouse
amounts to sexual orientation discrimination. Opposite sex couples
w/rights to sue for wrongful death in other states can bring wrongful
death claims in NY, but not same-sex couples.
Langan AC DISSENT
 Agrees that comity does not apply b/c VT has no interest in deciding
whether NY resident has a cause of action in NY for an accident that took
place in NY and killed another NY resident.
 VT civil union allows a wrongful death action by partners in VT – could look
to jurisdiction of celebration to decide the law.
 There is a separate question as to whether NY should recognize this legal
relationship. This case IS about marriage.
 Equity – define spouse to encompass the people the statute was intended to
protect
 Equal protection violation – based on sexual orientation discrimination
• It is conceivable that a state that does not itself have civil unions could dissolve a civil union.

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Efforts to Reduce Jurisdictional Conflict


• Uniform Child Custody Jurisdiction Act (UCCJA)/UCCJEA – model law adopted in some
form by all states: Custody-Vistitation
• Parental Kidnapping Protection Act (PKPA) – federal legislation
• UCCJA + PKPA are trying to prevent jurisdictional conflict, encourage the end of child
custody battles between states, deter child abduction across state lines, and facilitate the
enforcement of custody determinations.
o However, what has happened is sort of a “first come, first serve” policy whereby
whichever jurisdiction receives an action in the case first has jurisdiction.
• URESA/UIFSA – uniform state laws
Context of support and enforcement

Kuklo v. Superior Court of California (1978)


Father (P) v. State Court
Couple married with two children. Mother moves to CA, flies to NY to sign a separation
agreement. The agreement gives the father physical custody of the children during the school
year. The mother gets physical custody during the summer and holidays. The mother agreed to no
alimony. Father agrees to pay $3K /year in child support to cover when the kids are with the
mother.
The mother takes the separation agreement and goes to Haiti and procures a divorce in Haiti
incorporating the separation agreement and then goes back to CA.
Why Haiti? She wanted to get married to someone else. Even if she could get the divorce
in CA it would have taken a while whereas in Haiti she could get it done in a day.
If she did it in CA, the courts would have a duty to make an evaluation of the
custody agreement.
The daughter ends up living with the mother. The son wants to live with the mom so he goes and
moves there too. But then the mother realizes that she gets no support and she is taking care of
the kids full time. And furthermore, legally speaking the father has custody.
The mother wants modification of the support and custody.
First of all take the Hatian divorce and bring it into CA. But the father doesn’t allow the
CA court to have jurisdiction over him.
The USSC says that the father is right.
Holding: A state court may not exercise in personam jurisdiction over a nonresident,
nondomiciliary person unless that nonresident has certain “minimum contacts” with the forum
state such that the maintenance of the suit does not offend “traditional notions of fair play and
substantial justice”

Child Support Enforcement v. Brenckle (1997)


State Agency (P) v. Father (D)
Facts: Brenckle was divorced in Alaska and he moved to Massachusetts and stopped sending the
monthly child support payments he had agreed to. When the son turned 17 and began to make
plans for college, the mother filed an action in Alaska to recover child support owed. A judgment
was entered against Brenckle and was transmitted to the child support enforcement in
Massachusetts. The district court found that he was liable for $100K of payments.
Brenckle appeals claiming that before it could enforce the Alaska judgment the Mass. Court must
make an independent finding that he owed a duty of support to his son and that the mother had
slept on her right for 13 years and her claim was barred by laches.
Holding: Once registered, an Alaska child support order is enforceable in the same manner as an
order issued by the Mass. Court.

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 Under the Uniform Interstate Family Support Act once one court enters a support order,
no other court may modify that order for so long as the party for whose benefit the order
is entered continues to reside in the jurisdiction of that court.
Because Brenckle’s failure to make child support payments became vested as judgments by
operation of law, the defense of laches is not available to him.

Chaddick v. Monopoli (FL 1998)


Facts: A Florida court dismissed Chaddick’s (P) motion to enforce her divorce degree because it
determined that another state was the appropriate forum under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJA).
 MA custody order  Custody to mother (FL), summer visitation to father (VA). Kids
visit father, father never send them back to mother. Father files for modification of MA
custody order in VA – mother contests it – father gets custody modification!
Holding: Determination of whether an evidentiary hearing must be conducted regarding the issue
of another state’s appropriate exercise of jurisdiction is within the discretion of the trial judge.
 Wife files in FL to enforce MA judgment, but it is too late – mother already had chance
to litigate the claim in VA and she lost. FL must respect VA’s custody modification
because there was a full and fair trial and by appearing, there was jurisdiction.
 Mother could theoretically go to FL court and ask for modification of VA
order.
Chaddick DISSENT: This is an absurd result which encourages both forum-shopping AND
parents to kidnap and abduct their kids and then file for custody modification. It is the antithesis
of the results desired by UCCJA and PKPA.

Thompson v. Thompson (US 1988)


Father (P) v. Mother (D)
Facts: Mr. Thompson (P) contended that the federal court had jurisdiction to determine a
jurisdictional dispute between states over a custody determination.
Holding: There is no federal cause of action under the Parental Kidnapping Prevention Act
(PKPA) to determine the validity of conflicting state custody orders.
*Federal court does not want this case unless there was a federal law or a constitutional issue with
what the Louisiana court did

Loser in Chaddick and Thompson did not follow the rules correctly- when we create
good procedures for dealing with interstate conflict- downside is that if don’t follow the
rules precisely- potentially could get the
 both used PKPA to get what they want- not because it was in the best interest of
the child
o Downside: removes the best interest of the child

Civil union status does not directly impact issues of custody and visitation. DOMA and
marriage laws do NOT affect issues of inter-jurisdictional recognition of custody.
Miller-Jenkins v. Miller-Jenkins (VT 2006)
Facts:
 2 women (VA residents) go to VT to get civil union. Have child in VA – then move back
to VT. Relationship breaks up.
 Bio-mom moves back to VA with kid. Bio-mom files petition for dissolution of civil
union (and child custody) in VT, admitting that non-bio-mom is civil union partner and
child is civil union offspring (presumption of legitimacy even though biologically
impossible).

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Family Law Outline

 VT order dissolves civil union, custody to bio-mom, visitation to non-bio-mom.


 Bio-mom then files in VA for sole custody – granted! VT asserts exclusive jurisdiction
and that bio-mom is in contempt for violating visitation order.
Inter-state battle between VA and VT. VA COA reverses VA court  FFC of custody and
visitation provisions of VT order. VA does NOT have to recognize civil unions in order to
determine whether it has jurisdiction over custody case. Virginia must respect the custody
and visitation orders of Vermont. Not to do so would violate UCCJA + PKPA.
 Procedural in this case ends up with the right result
o Bio Mom’s mistake was that she started in Vermont. She should have
moved to Virginia first.

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