Family Law Outline PDF

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Family law outline...

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FAMILY LAW EXAM OUTLINE I. Getting and Being Married a. The formation of a marriage is a contractual transaction i. Cannot be modified, restricted, enlarged, released, etc. without the permission of the court Minary: shows how family law affects other areas of the law – husband b.

adopted his wife in an attempt to make her his heir so that she could inherit from his mother’s will upon his death – court said HELL NO – a spouse can inherit from but not through their spouse – court looks at intent of the person whose will/trust is at issue c. Breach of Promise to Marry (this cause of action no longer exists in KY) i. Majority: General rule- no cause of action for breach of promise to marry. Abolished breach of promise to marry through “Anti-Heart Balm” Statutes ii. Minority: Few jurisdictions recognize claim for breach of promise to marry, but often with limitations – hybrid b/w tort and contract law 1. Damages: a. Expectation: Plaintiff may recover monetary and societal value of the marriage (contract) b. Reliance: Expenses incurred in preparation for the marriage (contract) c. Punitive: Mental anguish and humiliation (tor) 2. Defenses: a. Physical/Mental Defects b. Unchastity of the plaintiff c. Plaintiff’s lack of love for the defendant d. Mutuality of the decision to terminate the engagement d. Gifts in Contemplation of Marriage Fowler i. Court will look at whether the gift was conditional (conditioned upon a future marriage) or absolute 1. This is a very fact intensive analysis, and the gift could possibly convert from conditional to absolute, based upon the facts, without the marriage occurring ii. Minority (growing trend): “no fault” approach – ring should be returned to donor, regardless of fault (Ownership of the ring was conditional-condition of marriage was never fulfilled) iii. Majority: fault-based; rings are a conditional gift; donor is entitled to return of the engagement ring only if the engagement was broken by mutual agreement or unjustifiably done by the donee. 1. Becomes a woman’s personal property upon the marriage. e. Pre-marital Contracts i. Enforceable contracts for contemplating marriage ii. Marriage is the consideration iii. Almost everything can be negotiated except child support and how the parties will perform during the marriage iv. KY Courts Evaluating Pre-martial Contracts (see defenses to enforcement below)

1. “Second Look” doctrine – a. was the contract fair and reasonable at execution b. unconscionable at enforcement. f. Enforcement of Pre-Marital Contracts i. Common Law Approach – contract-based Simeone 1. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of the agreements. a. Not the court’s place to determine if terms were fair or reasonable. ii. Uniform Premarital Agreement Act Approach- Pre-Martial Agreement be invalidated if: (more favorable to challenger of a prenup) (Note: See Section 6) 1. Person did not execute agreement voluntarily; or 2. Agreement was unconscionable when executed a. Procedural/substantive i. Substantive – considers whether the provisions of contract are mutual or the property division is consistent with the financial condition of the parties at the time of the execution. (void) ii. Procedural – unequal bargaining power, disadvantaged party’s lack of understanding 1. Factors – sophistication of parties, opportunity for independent counsel, technical setup of contract, fraud (voidable) iii. Gentry – antenuptual agreement can control property division at dissolution iv. Edwardson – maintenance agreement can control maintenance payments at dissolution v. Alimony/Spousal Support Provisions Antenuptial Agreements Upheld If: 1. Contractual terms were fair and 2. Contract was made with full disclosure of parties’ worth a. Otherwise, provisions modifiable by court using equitable powers of judicial review g. Requirements for Prenuptial Agreements i. Entered into freely, knowingly, voluntarily by each party 1. Rebuttable Presumption that agreement satisfies informed consent requirement when: a. Executed 30 days prior to marriage b. Both parties had/advised to obtain counsel, and had the opportunity to do so c. Without counsel, agreement contained understandable information about parties rights and adverse nature of their interests ii. Cannot be tainted by fraud, duress, or mistake iii. Each party must make a full disclosure of assets at the time an agreement is made iv. Cannot be unconscionable at the time entered into or at enforcement.

v. Must be in writing vi. Must be signed by the party to be charged vii. Triggering event is death or divorce – no meaning prior to this 1. Can cover financials – property and assets 2. Cannot prohibit child support claims or proscribe how a party should perform in the marriage. 3. Burden of proof: Person seeking to rely on the agreement must prove that it is valid. f. Defenses to enforcement vii. Unconscionability defense – manifestly unfair 1. KY - Test for unconscionability – the “second look doctrine” a. Considers fairness and reasonableness when entered into b. Unconscionability when enforcement is sought viii. Fraud, duress and undue influence ix. Modification or rescission 1. Carter v. Carter – tearing up agreement – manifests intent not to enforce x. No requirement for parties to have independent counsel xi. Substantive Fairness 1. Review at time of enforcement. Whether ‘substantive injustice’ based on: a. Passage of time b. Presence of children c. Unanticipated changed circumstances with significant impact on parties/children i. Note: UPAA provides that a premarital agreement will NOT be enforced at divorce if it would render one spouse at public charge ii. General Rule-Premarital agreements may NOT restrict judicial discretion regarding either child custody or child support II.Constitutional Limits on Marriage –Tests a. EXAM: Marriage is a fundamental right – determine standard to apply. i. Rational basis or intermediate scrutiny okay. Intermediate scrutiny is pretty standard. ii. Loving v. Virginia – recognizes a fundamental right to marriage (strict scrutiny for opposite sex marriage) iii. Zablocki – (unpaid child support) liberty interest in marriage is protected by the due process clause 1. Analysis a. Significantly interferes with exercise of a fundamental right i. Must be (1) Direct and (2) Substantial b. Not supported by sufficiently important state interest c. Not closely tailored to effectuate only those interests iv. Turner – prisoners may marry. Regulation must be reasonably related to a legitimate interest

v. Griswold: Court recognized a fundamental right of privacy within the marital relationship vi. Eisenstadt: Court also recognized a fundamental right to privacy (contraceptive choices) regardless of marital status) vii. Lawrence: (sodomy – homosexual sex) The right of privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion 2. Individual right to liberty under the Due Process Clause gives Defendants the full right to engage in their conduct without intervention of the government. 3. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. viii. Meyer (&Pierce vs. Society of Sisters): Fundamental right to procreate in relation to parents right to raise their children 1. Restriction materially interfered with power of parents to control children education and child’s opportunity to acquire knowledge 2. Liberty interest (14th Amendment) encompasses the right to “marry, establish a home and bring up children” ix. Windsor: (federal tax law re: estate of homosexual couple – marriage recognized by state, but not by federal law) – said that DOMA was unconstitutional b/c impacts the fundamental right to marry and b/c marriage is within the sovereign power of the states to regulate 1. The Court used some form of heightened scrutiny (rational basis with teeth or intermediate) 2. SDP – fundamental right to marry 3. EP – 5th amendment – quasi suspect class (homosexuals) a. State Regulation of Family Law: Regulate family law relationships based upon a public policy involving the general welfare of its citizens, which is not absolute b. State regulation cannot be arbitrary, unreasonable or capricious. c. States cannot prohibit certain marital rights and obligations without demonstrating a compelling state interest for doing do. 4. Domestic Relations Exceptions Rule: Federal courts do not have the jurisdiction to grant divorces, award spousal support to determine child custody issues (although diversity/AIC is met) a. Limitations: Family Related tortious conduct (child entitlement and unlawful taking of children) b. Federal courts have jurisdiction to adjudicate the constitutionality of state statutes regulating the martial relationship b. Standard of Review i. Gender Based Test 1. (1) Important government interest and 2. (2) Substantially Related to achieve objectives (necessary to compelling state interest ) 3. [Some courts] Strict Scrutiny

a. Necessary to a compelling state interest ii. Race Based Test 1. Strict Scrutiny a. Necessary to a compelling state interest iii. Social Test 1. Rational Basis a. Rationally related to a legitimate government objective 2. [Employment Question] Pickering Balancing Test c. Same-sex marriage (KY 402.045, page 3) Void & Unenforceable d. Same Sex Marriage Generally – unclear what level of scrutiny applies. Generally intermediate scrutiny. i. Perry – restriction on same sex marriage (Proposition 8) violates equal protection, even under a rational basis review. TEST WHEN USED When courts review a state law that has been challenged as violating the federal constitution. Age Classifications based Intermediate Is the law Scrutiny substantially related on: Gender, same sex to an important government interest? marriage

Rational Basis

Strict Scrutiny

Is the law rationally related to a legitimate state interest (lower standard)

(medium standard) Is the law necessary In an equal protection challenge, to accomplish an important government laws that classify people based on interest. (higher certain protected standard) classes. race

ii. Kerrigan v. Commissioner of Public Heath (Connecticut)– argument that civil unions are an inferior status to marriage. Applied intermediate scrutiny, decaling gay persons a quasi suspect class. iii. Federal DOMA 1. Definition of the terms “marriage” and “spouse” (for the purpose of receiving federal benefits) as a union between one man and one woman 2. States are not required to give effect to same-sex marriages from other jurisdictions under the full faith and credit clause. iv. State DOMAs 1. Most states have restricted marriage to one man and one woman either by statute or amendment to state constitutions. 2. KY 402.005 page 1– definition of marriage is codified by statute and a constitutional section 3. OH – restricts marriage to man and woman through marriage amendment to state constitution. b. Roe v. Wade (Abortion as a Private Choice)

a. Statute violated Due Process Clause of the 14th Amendment. b. Extended a fundamental right of privacy in deciding whether to terminate pregnancy. c. Recognized the right of woman to make fundamental decisions affecting her destiny a. ANALYSISa. Right to terminate pregnancy is not absolute b. Balanced against the state’s interest vs. mother’s health b. Casey reaffirms Roe’s essential holdings c. Test: a. Two-Pronged Strict Scrutiny Test a. (1) Requires state to justify an abortion regulation by showing that the regulation was necessary AND b. (2) Show the regulation was supported by a compelling state interest. c. Trimester System: Balancing the competing interest based on the stage of the pregnancy involved. a. First Trimester: Woman’s decision is between woman & physician : private and protected from state interference b. Second Trimester: State’s interest in the mother’s health becomes compelling and the state has the limited authority to regulate abortions to the extend reasonably related to preservation and protection of the woman’s health c. Third Trimester: Court found that the potential life was entitled to constitutional protection only upon viability, here the state’s interest in protecting the fetus becomes compelling, and the state may enact regulations to protect the fetus after that time. A state may prohibit abortions during the final trimester unless the mother’s life/health is at stake. III. State Regulation of Marriage IV. KY 402.005: Definition of Marriage (page 1) a. Windsor – NY woman marries female partner in Canada. Estranged son attempts to take property and woman had to pay inheritance taxes bc marriage was not recognized under NY law. US Supreme Court to determine if section 3 of DOMA is unconstitutional and what standard is proper in gay marriage cases. b. Lex loci – marriage is valid if valid in the state where it was entered into. c. KY 402.040 (page 2) Recognizing Marriages in Another State d. Restatement (Second) of Conflict of Laws Section 283(1) - Validity of Marriage i. The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage

e.

f. g. h. ii.

ii. A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage Uniform Marriage Evasion Act: Declared void all marriages entered into by parties who married in another state for the the purpose of evading their home state restrictions on marriage. Full Faith and Credit Clause (Art. IV Section 1) requires that a state confer full faith and credit on “the public acts, records and judicial proceedings” of sister state. Unless the jurisdiction determines otherwise, an out-of-state marriage is recognized to the extent it is valid in the state it was entered into. Some jurisdictions forbidding gay marriages recognize valid gay marriages from other jurisdictions. (Ex: Rhode Island – place of celebration controls) The legislature may prescribe the: a. Age parties may marry b. Procedure/form essential to constitute marriage c. Duties and obligations it creates d. Effects upon the property rights of both e. Acts which constitute grounds for dissolution i. Note: State cannot arbitrarily prohibit or interfere with the exercise of these marital rights without a compelling reason ii. Marriage: Statute/Contract? 1. Majority: Marriage constitutes a legal STATUS based upon contract. There are three parties to any marriage, Husband, Wife and State. The public policy of the State is to regulate marriage based upon the general welfare of citizens. 2. Minority: Contract

i. State Regulation of Marriage – Incest and Bigamy i. Void and Voidable Marriages 1. Void (KY 402.010, page 1): One that is invalid from inception (void ad initio), that never had legal existence. Marriage may be challenged at any time in any proceeding, either party/3rd party may challenge the validity of the marriage. Note-after declaring the marriage void, if there is marital property, the court will treat as cohabitating 2. Voidable : Valid until declared invalid. Marriage may be challenged by the one party; and throughout (not after death of one spouse) marriage remains in tact until the challenge. Cannot be collaterally attacked 3. Note: Where a couple goes to another jurisdiction which recognizes a factor which your current jurisdiction does not recognize, then returns home-through Full Faith & Credit makes the marriage voidable ii. Bigamy 1. Includes (1) legally recognized marriages and (2) those not sanctioned by the state 2. Penalties: Criminal, imposed by state 3. Defenses: Lack of criminal intent does not necessarily constitute defense 4. Exception: “Enouch Arden” Statutes-person who remarries after the disappearance of first spouse, without knowledge if the first spouse is alive 5. State v. Holm – D argued free exercise right unduly burdened. Because the state law against bigamy was applied to everyone, it did not violate equal protection. iii. Incest 1. Majority: Incestuous marriages void ab initio. a. Incest is a crime, however, the degrees of relation for marriage restrictions are not necessarily the same for criminal liability 2. Elevated Scrutiny : Relations that substantially & directly interfere with freedom to marry 3. Apply to nonconsensual and consensual acts between qualifying individuals j. Age Restrictions on Marriage i. State law requiring one parent’s consent is an “appropriate balance between the various interests. (Fundamental right to marry and fundamental right to parent-Kirkpatrick, Reasonableness Test. Balance interest of parties) ii. Kentucky Law on Age Restrictions – KRS 402.030 1. Can marry at 18 2. Can marry at 16-17 will parental consent a. If both parents married: only one consent required b. If divorced and joint custody: both must consent c. If divorced and sole custody: sole custodian must consent

d. If under 16: Judicial consent required, even over parent’s objection and w/just cause considered (pregnancy) iii. Fraud and Duress (KY 403.120, page 9) 1. Have to show that but for the fraud, you would not have entered into the marriage (high bar) a. By showing of clear evidence of reliance on the fraud b. The fraud must be related to the essential nature of the marriage 2. Blair v. Blair : Presumption that children born within a marriage are the biological father’s 3. Misrepresentation of Paternity: Essential Nature of Marriage Test to determine a fraudulent marriage Reynolds v. Reynolds [Majority] a. Test: i. Material fraud; ii. That effects the essential nature of marriage – lying about intent to have children, lying about religious beliefs, concealing pregnancy by another person. iii. Marriage voidable iv. Procedural Requirements – Licensure and Solemnization 1. Licensure (KY 402.100, page 4): States provide manner of issuance for marriage license (failure to obtain marriage license will not void marriage) a. Majority: Marriage licenses issued by county clerk or judges. Requires waiting period (usually 5 days) 2. Solemnization (KY 402.050, page 3): States require couple have marriage solemnized by authorized individual (religious official, government official) a. Marriage is dissoluble rather than void for failure to solemnize 3. General Rule: a. Procedural defects render marriage voidable (unless the state statute(s) re: licensure and/or solemnization specifically state that a non-complying marriage shall be void) 4. ½ of the states require that the license be issued in the county where one party resides or where the marriage is to be performed 5. Health Certificate: a. Applicant file health certificate including blood test results – many states have abolished this requirement. b. Does not have venereal disease or such disease is not a communicable stage – some states still require c. Mandatory HIV/AIDS testing – NO STATES REQUIRE, but some require applicants to be offered testing and information

6. Proxy Marriages: One party represented by agent, requires presence of either party (some states allow) – only recognized under federal law for federal survivorship benefits, but not for immigration purposes a. Policy is legitimization of children b. Immigration c. Death bed – courts are very suspicious of d. prisoners 7. Confidential Marriages a. Some states will allow b. Policy is to legalize relationships and legitimize children c. Requires filing of a marriage certificate but no license required i. Not open for public inspection absent a showing of good cause 8. Waiting period – apply for marriage license. Not valid until signed and executed by an officiate. License will include a time frame to perform ceremony and an expiration date. a. Can be waived in exigent circumstances 9. Void – (annulment) – prohibited by statute – incest, etc. a. Remedy - annulment b. Annulment: Declares that no marriage occurred because some impediment existed at the time of the ceremony i. Either party domicile, state where marriage c...