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FAMILY LAW OUTLINE – Harrison (Fall 2015)

I.

FAMILY LAW INTRODUCTION: First Day of Class Notes 1. Marriage and Dissolution a. What is a Family? i. Support System ii. Recognized relationship connection 1. Blood 2. Marriage 3. Children 4. Adoption 5. Special Connections a. It doesn’t stay constant, not static b. It is fluid and always changing 2. Evolution a. Marriage: i. Movement from informal and dissoluble to formal and indissoluble to formal and dissoluble b. Marriage Regulation: i. Canon Law Rules: Marriage indissoluble if valid when entered into 1. The main requirements for valid marriage were: a. Age b. Consent c. No Prior Marriage d. Parties not related e. Marriage must be consummated. c. Dissolution: i. Annulment ii. Divorce a Mensa et Thoro. Grounds: 1. Adultery 2. Heresy 3. Cruelty 4. Desertion iii. Divorce a Mensa et Thoro. Defenses: 1. Recrimination (Petitioner equally guilty) 2. Provocation 3. Condonation (forgiveness) 4. Connivance (Actively creating opportunity for adultery 5. Collusion (parties agree to deceive) iv. Traditional Grounds for Fault Based v. Move toward no-fault (UMDA model) vi. Some jurisdictions still consider fault in some circumstances 3. We take some things for granted, but should we? a. Formal Beginning b. Formal End c. Secular State Regulates

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FAMILY LAW OUTLINE – Harrison (Fall 2015)

II.

PRIVATE CHOICES: Constitutional Limitation/Regulation INTRODUCTION: Class Notes 1) Where are the limits of the State’s intrusion? 2) What are the State’s concerns or legitimate reasons? STATE’S INTERESTS Stability  Children Property Finances/Economics Medical Decisions Reproduction: - Potential Burden (Taxes) - Limited Paternity Suits

STATE’S CONCERNS Health and Safety Welfare  Children Morality  Moral Judgments about Sex Taxes  Privileging Marriage

EVOLUTION OF THE RIGHT TO PRIVACY: 1) THE BIRTH OF PRIVACY: Case: Griswold v. Connecticut (1965) pg 2 Facts: Doctor gave medical advise to a married couple about contraceptives. Statute makes it illegal to use contraceptives. Issue: Does State Statute violate constitution (14th Amendment - Due Process)? Rule: Right of privacy is violated here. (BUT FOR MARRIED COUPLES ONLY)  Find right to privacy found all over the constitutions, but not written in one amendment specifically. (Strict scrutiny test)  Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means, which sweep unnecessarily broad and thereby invade the are of protected freedom. Concurrence: Only concerned with 9th amendment. 14th amendment → ordered liberty Dissent: Not in the constitution, government can abridge the right of privacy unless the constitution says you can’t. If you want the right to privacy, write an amendment. Privacy not in constitution, but unenforceable anyway. Note: No agreement on existence of the right of privacy and where it would exist, if it does.  Where ever it is, what does the right to privacy mean? o To be left alone, inaccessibility, non-disclosure.  Where does the right of privacy begin? o House is private; don’t lose right to privacy once they leave the home. CLASS NOTE: Beginning of Fundamental Right to Marry Argument:  Privacy  Harmony in living and bilateral loyalty Case: Eisenstadt v. Baird (1972) pg 12 Facts: Distributing contraceptive at a University.  Statute prohibiting distribution to single individuals (Not Married Couple): o Prevents Premarital Sex o Health

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FAMILY LAW OUTLINE – Harrison (Fall 2015) No reason to distinguish between single and married individuals Not all contraceptives are dangerous Prohibition against contraception Ban on use cannot be upheld (Griswald)  Griswald, does not really apply to these facts Issue: Single individuals treated differently than married couples Rule: If the right of privacy means anything it should apply to the individual to be married or not, as well as to have children or not.  If you don’t follow this it would violate Equal Protection Clause  Privacy is the right to have a child or not; rights as a married couple, but as an individual have bodily integrity, right not to be trespassed against. o o o o

2) THE ROOTS OF PRIVACY: Case: Meyer v. Nebraska (1923) pg 16 Facts: Teacher teaches a child German. Crime to teach any language other than English. Issue: Does statute infringe on teacher’s liberty? (Liberty not defined exactly). What does the statute do to promote public good? Is that compelling enough to keep it? Rule: Right to teach and engage in an occupation is liberty (allowed to teach German because he was hired as a professional to teach). Case: Pierce v. Society of Sisters (1925) pg 17 Facts: Act required every parent to send their child to a public school during the time public school is open and failure was a misdemeanor. Private school for orphans claimed the Act would destroy their business profits and value of property. Issue: Can the State choose where a child goes to school, taking the choice away from parents? Rule: Right of parents to choose their child’s school. (Rational Relationship Test) Note: This case and Meyer are pivotal to privacy rights and liberty. Takes idea of liberty and family choices and values. 3) THE GROWTH OF PRIVACY: a) Abortion as a Private Choice: Case: Roe v. Wade (1973) pg 21 Facts: TX statutes outlawed abortion. Doctors were subject to prosecution. Reasons for abortions being illegal:  Discourage illicit conduct (Victorian principles)  Dangerous medical procedure → want to protect health of the mother o Not persuasive today b/c medical advances  Protecting prenatal life o State may assert interest when “potential life” is involved beyond protection of the woman alone o Limit on the principle of “potential life” difficult to find, some ambiguity there → can include forcing/banning contraception Issue: Whether the TX statute improperly invades a right to privacy?

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FAMILY LAW OUTLINE – Harrison (Fall 2015) Rule: A woman has right to terminate her pregnancy that is protected by some part of the constitution, but only if it is in the first trimester.  Court uses liberty as a rationale for the decision o Strict Scrutiny Test: infringes on liberty→ consequences on woman  State’s interest kicks in at some point. o Compelling State Interest: Mother’s health and protecting potential human life.  At end of first trimester the state’s interest is more compelling, interest in health of the mother  Mortality rates go up after second trimester  State interest in potential life kicks in after the fetus is viable;  At the point of viability. State can regulate after viability Dissent: Transaction is not private in the ordinary sense of the word.  An unborn life is affected by this and that is definitely not private.  Privacy is a slippery slope, one’s definition of privacy is different from another’s b) Anti-Abortion Laws:  State can refuse to support abortion clinic. If they pull funding then they close.  Informed consent provisions, requiring pregnant women to be shown fetuses at two week gestational periods (ct allowed) o Availability of support of father and availability of other options (ct did not allow this info).  Feminist scholars do not all agree on Roe v. Wade decision

LIMITS OF PRIVACY: 1) BURDENS ON PRIVACY: Case: Gonzales v. Carhart (2007) pg 40 Facts: Partial Birth Abortion Ban Act of 2003. Holding: The Act does not impose an undue burden and is not unconstitutional Undue Burden Test: If a statute puts a burden on the mother to decide how to have an abortion then the statute is unconstitutional. 2) LIBERATION OF PRIVACY: Case: Lawrence v. Texas (2003) pg 59 Facts: Officers entered into an apartment and observed two men engaged in sexual acts and arrested them. There was full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Issue: Whether the TX statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct is valid. Rule: The right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Entitled to respect for their private lives. Note: The TX statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of individuals. Page 4 of 52

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FAMILY LAW OUTLINE – Harrison (Fall 2015) WHEN PRIVACY RIGHT CONFLICT: 1) WIVES AND HUSBANDS: Case: Planned Parenthood of Southeastern Penn v Casey (1992) Pg 75 Facts: Statute requiring married women to have a signed affidavit from husband agreeing to the abortion  Effect of statute basically deters them from having abortion because of their own safety. Issue: Woman’s right to the abortion v. father’s rights Rule: Undue burden test: state can regulate as long as it does not put substantial obstacles in the woman’s way. Here, there was an undue burden. Note: Under these circumstances, father does not have any rights → strictly woman’s choice  Why? Burden is on woman, health consequences, physiological aspects of the pregnancy o If the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. 2) CHILDREN AND PARENTS: Case: Cincinnati Woman’s Services, Inc. v. Taft (2006) pg 81 Facts: Ohio law makes it a misdemeanor and tort for any person to perform an abortion on an unemancipated minor unless the attending physician has “secured the written informed consent of the minor and one parent.  The Single-Petition Rule further provides that no juvenile court shall have jurisdiction to rehear a petition concerning the same pregnancy once a juvenile court has granted or denied the petition. Issue: Whether an abortion regulation that limits minors seeking a judicial bypass of the statutory parental-consent requirement to one petition per pregnancy is constitutional. Rule: Ohio’s law preventing more than one petition per procedure acts as a substantial obstacle to a woman’s right to an abortion in a large fraction of the cases in which the single petition is relevant. The Single-Petition Rule is an undue burden and facially unconstitutional. 3) LIFE AND DEATH: Case: Cruzan v Director, Missouri Dept. of Health (1990) Pg 93 Issue: Whether an unconscious person has a right to deny medical assistance to preserve their life, Does MO have the right to regulate the issue of right to die? Analysis: Informed Consent: the right not consent/right to refuse treatment  Quinlan Balancing Test: right of privacy vs. state interest  The logic of the cases discussed above would embrace such liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. o Decision is not based on privacy though (even though Quinlan was) o Switches from privacy reasoning to liberty (described like a bait and switch tactic)  Most courts have based a right to refuse treatment either on common law right to informed consent or on both common law right and constitutional privacy right  A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment

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FAMILY LAW OUTLINE – Harrison (Fall 2015) Petitioner’s argument: incompetent persons should possess the same right Holding: The United States Constitution does not forbid the establishment of procedural requirement by the State that some evidence of the incompetent’s wishes as to the withdrawal of the treatment be proved by clear and convincing evidence.  Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself.  There is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent.  Liberty interest between competent and incompetent individuals: o Liberty interest is non-equivalent between a competent and incompetent individuals  State’s interest needs to be taken into consideration, because of the circumstances  Certain situations → parents interests  Incompetent cannot make decisions → no informed consent  Which is why liberty interest is not the same  MO established: Clear and Convincing Evidence Requirements before terminating life saving procedures O’Conner Concurring Opinion: Delegating the authority to make medical decisions to a family member or friend is becoming a common method of planning for the future Scalia Concurring Opinion: Federal Courts have no business in this field → state issue o Suicide is not a fundamental right → look to EP clause instead of DP clause o Legislatures can envision themselves in this situation and so they will enact laws they find most appeasing to themselves → men legislating abortion. Dissenting Opinion: State puts too high of a burden on patient → only allowing specific statements as evidence of patient’s wishes

III.

GETTING MARRIED: PUBLIC V. PRIVATE DIMENSIONS OF COURTSHIP AND MARRIAGE: 1) THE MARRIAGE CONTRACT: Case: Maynard v Hill (1887) pg 109 Issue: Arose as a challenge to a divorce. Notes: Granting of a divorce is within the power of state legislature  Marriage is a civil contract, based on parties’ intent  More than a mere K, status regulated by the state  When people marry →entered into a new relationship with rights and duties associated with by the state o Special K that can be regulated by the state Rule: Marriage K cannot be modified.

PREMARITAL CONTROVERSIES: 1) BREACH OF PROMISE TO MARRY:

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FAMILY LAW OUTLINE – Harrison (Fall 2015) Case: Rivkin v. Postal (2001) pg 110 Facts: Spoiled baby mama seeking damages for breach of a promise to marry. Holding: Failed to carry the statutory burden of proof placed on person’s seeking money damages for a breach of promise or contract of marriage.  The quitclaim deed conveying the property to himself and her as joint tenants with right of survivorship is not written evidence of a promise to marry.  Her parents are not disinterested witnesses because they are also her creditors. 2) GIFTS IN CONTEMPLATION OF MARRIAGE: Case: Campbell v. Robinson (2012) pg 116 Issue: Is an engagement ring a conditional gift? Rule: Engagement ring is a conditional gift and must be returned to the giver of the marriage does not occur.  Consideration of fault has no place in determining ownership of an engagement ring. Note: Case remanded for a jury trial, because of the evidence that the ring was converted into an absolute gift, by the guy telling the girl to keep the ring after the engaging was cancelled.

Class Notes: a) Theories of Recovery: (1) Liquidated Damages for Breach (Recovery includes fraud or unjust enrichment) (2) Conditional Gift Theory (CGT) (a) Courts generally hold that recovery of such gifts rests on CGT: (i) Property obtained in consideration if marriage is conditioned on the performance of the marriage. If the condition is not met, the transfer has not been completed and the gift is recoverable. 1. Courts consider the nature of the gift, surrounding circumstances, and cause of the broken engagement. b) Current Majority Rule: The Party who breaks engagement loses the ring (Fault-Based) i) Fault barred recovery or retention of the ring. (1) The man could recover the ring if the woman unjustifiably ended the engagement or if the couple mutually dissolved it. (a) But not if he unjustifiably terminated the engagement, c) Growing Trend: Fault is irrelevant, question becomes the nature of the gift i) Conditional or Absolute

PREMARITAL CONTRACTS: Case: Simone v Simone (1990) Pg 120 Facts: Wife signed away rights in Prenup.  Court thinks should apply contractual law, not worried about thoughts of parties  Tough luck → bound by agreement, should have known better  Court says no duress and Wife is barred from receiving alimony. Rule: Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their prenuptial agreements. Dissent: Courts shouldn’t step in under all circumstance, only when there is clear and convincing evidence that they need to.

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FAMILY LAW OUTLINE – Harrison (Fall 2015)

Case: In Re Marriage of Shanks (2008) pg 123 Facts: Husband an attorney; Wife was his bookkeeper, secretary and office manager. She agreed to prenup. He advised her twice to review it with her own attorney. She took it to a friend who was not licensed in her state and that friend told her to take it to an attorney in her own state, which the wife did not. Issue: Whether the prenup was not executed voluntarily and therefore unconscionable because as an attorney he had substantially greater power under the circumstances. Rule: Buyers Remorse will not excuse the wife of her voluntary relinquishment if her marital property rights.

Prenuptial Agreement - Class Notes: 1) Benefits of Prenup: a) Security and peace of mind b) Keep pre-marital property separate c) Keep pre-marital debts separate 2) Downside of Prenup: a) Lack of trust b) Things could change 3) KY requirements for Prenuptial Agreements: Can cover property, support, maintenance; NOT child support or custody. -(Edwardson 790 S.W.2d. 941 (KY 1990) and Gentry, 798 S.W.2d. 928 (KY 1996)) a) Must be full disclosure by both parties b) No fraud, misrepresentation, duress, coercion c) Entered into freely d) Must not be unconscionable at entry or at time of enforcement i) KY does not Double Look e) Must be in writing and signed by party against whom its enforced f) Triggering event --> death or dissolution 4) Ohio – Same requirements, BUT: a) Where the results is disproportionate to equitable distribution i) Then must be an actual showing of knowledge

SUBSTANTIVE AND PROCEDURAL REGULATIONS: INTRODUCTION: Class Notes 1) Basic Questions is whether the restriction makes the marriage “Void” (void ab initio - void from the beginning) OR Voidable. a) VOID: Never had legal existence i) Marriage may be challenged at any time (even after death) and in any proceeding and challenged not limited to parties. (1) EX: Littleton v. Prage (TX): Transgender deceased, family upon death fought for estate claiming the marriage was void against the gay husband. b) VOIDABLE: Valid until subsequently declared invalid. i) Challenge may only be made by the parties during the marriage.

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FAMILY LAW OUTLINE – Harrison (Fall 2015) 2) Choice/Conflict of Law in Determining Validity of Marriage: a) Law of Celebration Controls b) Law of Celebration control UNLESS it can be shown that couple went to other state specifically to evade the law of domicile. c) Law of Celebration controls UNLESS recognition against public policy of State. 1. CONSTITUTIONAL LIMITS ON ST REGULATION OF ENTRY INTO MARRIAGE: Case: Loving v Virginia (1967) pg 133 Issue: Does a statute to prevent marriages between persons solely on the basis of racial classification violate the Equal Protection & Due Process Clauses of the 14th amendment? Facts: Statute is banning interracial marriages: a white person marrying anyone other than a white person. Gave definitions of who is a white, non-white, native American etc.  Punishments severe: imprisonment 1-10 years o State argues the because statute punishes both races equally, it does not constitute an individual discrimination based on race Analysis: EP Clause demands that racial classifications, especially in crim statutes, be subjected to the most rigid scrutiny, and if they are ever to be upheld, they must be ...