Family Law Outline PDF

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Family Law Outline

I. Marrying A. Constitutionality of Marriage Restrictions Loving v. Virginia → black woman and white man married in DC and went back to VA to establish marriage. A grand jury issued an indictment charging them with violating VA’s ban on interracial marriage. ● Violated EP → no legitimate purpose independent of racial discrimination that justifies classification ○ Racial classification is subjected to most rigid scrutiny ● Statutes deprive Lovings of liberty without clue process → violates DP ○ Freedom to marry is one of the most vital personal rights essential to orderly pursuit of happiness ○ Marriage is one of the basic civil rights of man fundamental to our very existence and survival ● Restricting freedom to marry because of racial classifications violates central meaning of EP BEN ASHER NOTES ● White supremacy justifies itself as “will of God” and religion ● State argues God, best interest of child saying no “scientific data” on effect of interracial marriages ● Justifications - religion and social sciences ● 2 constitutional rights: EP (racial classification right to not be subjected to classification) and DP (freedom to marry - liberty interest) ● DP is vital personal right and inherent right we all have ● This case raises level of scrutiny because of fundamental right Zablocki v, Redhail → when Redhail was a minor in high school, he had a baby and court ordered him to pay money each month to support the child but he was unemployed and couldn’t make payments. He later applied for a marriage license and was denied because he didn’t obtain court order granting permission to marry as required by statute → wouldn’t have satisfied prerequisites because he owed child support and the child was a public charge. ● Statute violates EP - cannot be justified as a means for ensuring counseling of persons within its coverage ○ Interest cannot support withholding of court permission to marry once counseling is complete ● Statute provides incentive for applicant to make support payments - collection device rational cannot justify state’s broad infringement on right to marry ○ Person can’t meet payments - no money goes to child and still prevents marriage

○ State has other means for extracting payments ● State can regulate marriage but not directly interfere and statute cannot be upheld unless it’s supported by sufficiently important state interests and is closely tailored to effectuate only those interests BEN ASHER NOTES ● Significance of marriage as fundamental right ● Right to marry gives right to access many things - tax, benefits etc Turner v. Safely → marriage regulation - inmate can marry only with permission of superintendent of the prison and approval can only be given when there are compelling reasons to do so (pregnancy or birth of an illegitimate child) ● Court strikes down - inmates have rights ● Almost complete ban on decision to marry is not reasonably related to legitimate penological objectives ● Marriage gives emotional support, spiritual significance, benefits etc ● Security interest → no logical connection between restriction and formation of love triangles ● Rehab interest → restriction not reasonably related to goal BEN ASHER NOTES ● Interests are paternalistic The Defense of Marriage Act (1996) A Federal Law that 1. Marriage is between only one man & one woman 2. State can deny marriage licenses given by other states 3 Questions: 1. Why is the state interested in marriage? 2. When can the state restrict marriage? 3. What constitutional rights are at stake? Obergefell v. Hodges → Michigan, Kentucky Ohio and TN - define marriage between man and woman. 14 same sex couples - claim violation of 14th by denying right to marry or have marriages performed in another state. ● Same sex couples may exercise the fundamental right to marry in all states → no lawful basis for a state to refuse to recognize a lawful same sex marriage performed in another state on the ground of its same sex character ● Right to marry is fundamental and protected by 14th ● 14th Am requires both marriage and licensing and recognition for same sex couples BEN ASHER NOTES

● Rights elaborated here ● US v. Windsor - before Obergefell in 2012 and many state cases before then - 1970s began same sex conversation ○ Struck down defense of marriage act - tax case ● Federal Defense of Marriage Act - enacted in 1996 by Clinton said marriage only between man and woman ad states can deny marriage licenses issued by other states ● State v federal: states issue marriage license, lot of power over marital life - benefits that come under federal law that states don’t give → strong issue of federalism, state sovereignty ● Bowers: privacy regarding sexual intercourse states had the right to ban, overturned in Lawrence saying same sex couples have the same right as opposite sex to enjoy intimate association ○ If you can’t have sex with your spouse, how are you suppoesd to be married? It wouldn’t make sense, which is why Lawrence came first and led to Obergefell ● Kennedy saying can’t exclude because you think immoral and Scalia dissent saying didn’t want democrats pushing agendas on us ● DP analysis 4 reasons - fundamental right: 1. Right to personal choice is inherent in concept of autonomy 2. Supports person which of committed individuals 3. Children and everything associated with children 4. Marriage is keystone of societal order B. Other Categorial Restrictions on Marriage 1. Incest Back v. Back → daughter is P and daughter of William Back’s wife from former marriage. William and wife divorced and he married the daughter when the wife died. ● Marriage was valid ● Relationship of affinity between William and daughter which existed during marriage between William and P’s mom terminated when she divorced him, so P was not the daughter of mother BEN ASHER NOTES ● Preying on step children ● To avoid power dynamic → should say marriages void 2. Age In re: JMN → father had custody and took 14 year old daughter to visit mom. Mom took daughter to get married to 18 year old boyfriend in juvenile court in TN. Mother gave consent and court gave permission and they got a marriage license. The father filed to set aside the order of giving permission to marry. ● Father was primary parent and mother had no decision making authority

● Father was unaware, mother had mental illness ● Best interest of kid is with father, not married BEN ASHER NOTES ● Void - from the beginning invalid v. voidable - ct has to invalidate to make invalid 3. Polygamy Collier v. Fox → Nathan and Vicki married and Nathan was committed to Christine and wanted to get married. The application was denied because it violated the law of marrying multiple people at once. They claimed it violated 14th. ● Prior case prohibits polygamy - denial isn’t unconstitutional ● Civil prohibition - constitutional Q is settled: no more than 2 people can marry C. Procedural Restrictions Rappaport v. Katz → P’s are 2 couples, one married and one planning on marriage. The claim was about dress guidelines that deprive DP. Women wanted to wear pants not skirts. ● State concern - federal judges have too much to do to become involved in this dispute which can be resolved by NY state Jones v. Perry → Jones and Sauer want to get married, Sauer is in jail and the county clerk denied the marriage license saying the both need to be physically present. Perry argues that the personal requirement violates fundamental right to marry, which is guaranteed by DP of 14th. ● In person requirement limiting who can marry → prevented Jones from marrying Sauer which imposed a direct and substantial burden on fundamental right to marry ○ Fails under strict scrutiny ● In person requirement not closely tailored to effectuate only that interest ● To obtain permanent injunction → P must establish he has suffered constitutional violation 1. Suffered irreparable injury 2. Remedies available at law 3. Remedy equity is warranted 4. Public interest would not be disserved by permanent injunction Strict scrutiny for any law that places a direct and substantial burden on the right to marry or else rational basis D. State of Mind Restrictions Lester v. Lester → husband claims marriage never intended to be a real marriage - coercion. 2 documents and one says it was against his wishes and to her benefit, not an actual marriage. Others said that the marriage is null and void after the fact. Wife wanted spousal support, he wanted annulment. ● 10 year relationship and ongoing

● He accepted into benefits of relationship ● What they signed was not enforceable ● Persons may not enter into marital relationship in conformity with law then dissolve marriage in violation of law BEN ASHER NOTES ● K law - assent ● Men can’t be coerced to have sex with woman court says (1949) ● 3 way relationship between state, wife and husband - can’t just decide to leave ● State sets rule for dissolution and entrance into institution of marriage Johnston v. Johnston → 20 month marriage, she claimed fraud and deceit because he was gross and drinking. ● Concealment of incontinence, temper, idleness, extravagance, coldness etc cannot be basis for annulment ● Fraud must go to very essence of marital relations before it is sufficient for annulment need strong showing of fraud ● Marriage is void - deed is void BEN ASHER NOTES ● Annulment v dissolution - property rights (court has interest) In re the Marriage of Farr → 30 year marriage, remarried because the wife believed husband had terminal illness. ● Rule 1: preponderance of evidence applies when party seeks to avoid transaction alleging fraud, mistake, etc ● Rule 2: court shall enter a decree declaring marriage invalid if 1 party entered into marriage in reliance on fraud act or representation of the other party when act or representation goes to essence of marriage ● Wife’s testimony credible, misrepresentation went to essence of marriage E. Common Law Marriage In re Estate of Duval → Duval and Hargrave never married and Duval died but they claimed they were basically married. Daughters said not married. ● Common law marriage occurs with 3 events: 1. Declaration by parties of intent to marry 2. Cohabitation 3. Holding out of themselves to community of being husband and wife ● No specific time existed when the couple mutually agreed / declared intent to be married. It needs to be more than implicit so first requirement failed → not married II. The Legal Significance of Marriage

A. The Traditional Model McGuire v. McGuire → Lydia sued Charles to recover suitable maintenance and support money. ● Marital relations 33+ years, wife never complained or separated (separation would need to happen) ● As long as home is maintained and parties are living as husband and wife, it may be said that the husband is legally supporting the wife and purpose of marriage is being carried out ● Public policy BEN ASHER NOTES ● Family private entity / free zone, state can’t interfere Bradwell v. Illinois → Bradwell sought admission to bar of IL after being denied because she was a woman ● Man is protector, woman deals with family ● Law of creator (God) ● Woman should not adopt career - public policy Graham v. Graham → ex husband against ex wife - they agreed on K for her to pay $300/month to him. Divorced, he wanted to work she didn’t want him to and made K ● K void because contravenes public policy ● Husband would be obligated to wife, release husband from duty to support wife, should be able to work ● Binding K ties parties’ hands in future, inviting controversy and litigation between them ● Marriage not merely a private K between parties but creates a status in which state is vitally interested and under which certain rights and duties ● Law is well settled that a private agreement between persons married which attempts to change the essential obligations of the marriage K as defined by law is contrary to public policy and unenforceable BEN ASHER NOTES ● Private ordering - reversing of gender role is against public policy according to court ● Federalist argument: if giving women the right to vote → mess with state sovereignty! Slippery slope, will want more rights ○ States independently regulate marriages ● Ginsberg reading: woman’s place in world controlled by men is divinely ordained and laws differential treatment of sexes operates benignly in woman’s favor ○ Men to women as white is to black - subordination B. Challenges to the Traditional Model 1. Constitutional Limits on Sex Discriminatory

Orr v. Orr → AL statute requires only husbands to pay alimony (spousal support after you get divorced), not wives ● Unconstitutional ● Old notion that man’s responsibility can no longer justify statute that discriminates based on gender ● Sex is not an accurate procy (measurement for need) for financial need ○ Individualized hearings determine nature of marriage ● State cannot classify on basis of sex ● Gender stereotyping ● To withstand scrutiny under EP clause, classifications by gender must serve important government objectives and must be substantially related to achievement of those objectives BEN ASHER NOTES ● Statute reinforces idea man supports woman ● Sending message - states can’t have sex based alimony statute United States v. Virginia → VMI only admitted men. Female sought admission and US sued VA and VMI for violating EP clause. There was stereotype men stronger than women and women couldn’t train at VMI. ● VA showed no exceedingly persuasive justification for excluding women at VMI violated EP ● No persuasive evidence that VMI’s male only admission policies is in furtherance of a state policy of diversity ○ All other public colleges and universities in VA allowed women ● notion that admission of women would downgrade VMI’s stature / destroy system and school is judgment hardly proved ● Justification for excluding all women from citizen soldier training for which some are qualified cannot be exceedingly persuasive ● Scalia dissent: argues intermediate scrutiny - whether exclusion of women from VMI is substantially related to important government objective; single sex colleges provide better education BEN ASHER NOTES ● Rules we set up at public sphere will shape family and family issues - equality ● Women can’t be equal in family if they aren’t treated equally in all aspects of life 2. Statutory Limits on Sex Discrimination Hopkins v. Price Waterhouse → Price waterhouse denied partnership to one of its employees ● Title VII P proves gender played role in employment decision. D can avoid liability by proving by preponderance of evidence that it would have made same decision if not taking gender into account

● Pricewaterhouse did not prove - didn’t violate their rights of free association, they must yield to compelling national interest in eradicating discrimination 3. Private Ordering Maynard v. Hill → marriage subject to control of the legislature. More than mere K, cannot be modified, restricted, etc like other Ks. Parties are of law, relation for life BEN ASHER NOTES ● State 3rd party relationship ● Autonomy, liberty etc equal to each other ○ K among themselves and outside marriage ● Enforcement of K within marriage as public policy Prenup: who will benefit? Person who is more financially powerful. Don’t want to lose $ and assets Goal of mediator is to make agreement, not to be fair - parties work together to settle ● Sometimes mediation is ok but power dynamics Premarital Agreements Simeone v. Simeone → married couple and his attorney presented her with a prenup. She signed without knowing legal consequences. If they divorced, he would pay $25k max ● Contracting parties normally bound by their agreements → terms of prenup must be regarded as binding, without regard as to whether the terms were fully understood ● To impose per se requirement is contrary to K law, paternalistic interference ● Absent fraud, misrepresentation or duress, spouses should be bound by the terms of their agreement BEN ASHER NOTES ● Concurrence says women are not equal but the majority treats them as if they are ● Women don’t need protection - should be able to K the court is saying ● Prenups should be treated as other agreements ● Power dynamics here - he had more power Marital Agreements Ansin v. Craven-Ansin → couple married 21 years - marital agreement in 2004 and 2 years later the husband filed for divorce and sought to enforce terms ● Lengthy negotiations, separate counsel, wife made informed voluntary choice to sign ● No fraud - husband worked hard to improve relationship; disclosure sufficient - she was aware; wife’s waiver was meaningful ● Burden on spouse seeking to enforce agreement (fair at time of execution and divorce) ○ Party’s can obtain separate legal counsel

○ There was fraud / coercion ○ Assets were fully disclosed ○ Spouses knowingly and explicitly agreed in writing to waive right to a judicial equitable division of assets ○ Terms are fair and reasonable Separation Agreements Long v. Long → husband and wife executed stipulated decree that established property distribution, child support and custody etc before divorcing. He argued K should not be enforceable because he was drunk, he had a history of difficulty with reading, he was coerced, provisions are unconscionable, not in best interests of kids etc ● There was consideration because decree amounted to a settlement ● There was no unconscionability because he didn’t lack meaningful choice, sought no help BEN ASHER NOTES ● Always consideration ● Best interest of child is court determination, not parties ○ Kids ultimate 3rd party to agreement Divorce with children bargaining 4 elements: 1. Property divided 2. Alimony / spousal support 3. Child support 4. Child custody and visitation Statutory rules on all - judge has to decide ● State has power over children → state and judge have to decide best interest BUT courts will defer to parents and what they think ● Even though state decides, parents decide through divorce bargain together ● Courts defer because ○ Parents know each other and kid ○ Rationale that they’re going to do what they want anyway ○ Limited jurisdiction and burden on system to get involved ■ This per se makes children bargaining chips ● Property divided 50/50 is rule - client’s bargaining chip ● NYS higher earning spouse pays lower earning spouse 2k / month ○ Client is lower earning spouse and they ask - that is their bargaining chip ● Rule in particular state will be default bargaining status in negotiation ● Custody → best interest standard → ALL STATES

C. The Constitutional Right to Privacy & its Limits 1. The Right to Privacy Griswold v. Connecticut → doctors giving info and instruction and medical advice contraceptives - to prevent married couples from conceiving. The law forbid use of contraceptives for “immoral sex”. ● State may not, consistently with first amendment, contract spectrum of available knowledge ○ We have protected forms of association that are not political but pertain to social, legal and economic benefit of members ● Government purpose to control / prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and invade protected freedoms ○ Marriage is association that is protected ○ Law cannot stand ● Right of privacy → protect marital union ● Dissent: government has right to invade privacy unless prohibited by specific constitutional provision, court taking too much power, too broad and jeopardizing separation of powers Eisenstadt v. Baird → Baird exhibited contraceptive articles during lecture on contraception at Boston U and gave one woman a form of contraception. Under law, only married people could get contraceptives and only registered doctors / pharmacists could provide ● Expands Griswold ● Right to privacy - right to individual to be free from unwarranted government intrusion into matters so fundamentally affecting a person as decision whether to bear or beget a child ● Providing dissimilar treatment for unmarried and married persons who are similarly situated, MA law violates EP ● Under Griswold- ban on distribution to unmarried persons is equally impremissible Planned Parenthood v. Casey → 1973 Roe v. Wade: woman’s ability to choose to have an abortion without excessive government restriction. Male doctor is the ...