Family Law Outline
Author: Anonymous
School: UC Davis, King Hall
Text: Carl E. Schneider & Margaret F. Brinig, 2nd Edition
Professor: Professor Onwuachi Y
ear: Spring, 2005
I. Introduction
v What is family?
o Newspaper articles talks about how families have changed-
§ Increase in the # of single mothers and fathers.
§ Younger people not marrying + older people not marrying for practical reason (e.g. division of property).
§ Many young people are just not marrying at all.
o Group of 2 or more people related through blood, marriage/dp, adoption
o Social unit whose primary function was collective care of anyone in the unit.
o 2 or more people related by blood, law, or commitment who perceive each other as interconnected unit.
o Unit of 2 or more people with close social based
II. Pre-Marriage issues
v Breach of Promise to Marry
o § 43.4à no cause of action for damages if broken promise to marry
o § 43.5à no cause of action for
§ alienation of affection (i.e. stealing someone’s spouse)
§ criminal conversation
§ seduction of person over age of legal consent
§ breach of promise to marriage
v § 1590- Gifts in contemplation of marriage: recovery
o Gift of money or property made in contemplation of marriage, the donor may recover the gift or such part of its value:
§ If donee refuses to marry, or
§ If it is given up by mutual consent
o If donor refuses to marry, then he/she may not recover the gift given in contemplation of marriage.
v Simonian v. Donoian
o Facts: man gave ring to woman and mom also gave watch to woman. Now man refused to marry and wants stuff back.
o Holding: can’t get ring back because he is the one who refuses to marry. The statue doesn’t state an exception for whether good reasons to not marry (probably good because not want the courts to get involved here). Can’t get the mother watch because not given in contemplation of marriage so even if she was backing out, he still wouldn’t get watch back.
v Norman v. Burks
o Facts: Husband while married gets into relationship with another woman. Gives here $$, assets, etc. relationship ended when woman said will marry someone else. Man wanted recovery.
o Woman says against public policy to return property b/c promote divorce.
o Holding: recovery ok b/c entitled to property b/c of resulting trust. No consideration for property. Presumption that woman had equitable interest in property. Creative way to protect man.
v Premarital Agreements
o Pernups are agreements made btw potential spouses. There is no federal family law. But there is uniform prenup agreement act.
o Advantages
§ Gives notice of what to expect
§ Second marriages, protect and divide assets to protect children
§ Protects your assets
§ Protect other people who could be damaged if no prenup
o Disadvantages
§ Distrust
§ Change in circumstances that parties didn’t contemplate
§ Makes people plan for divorce
§ Issues of unequal bargaining power
o Procedural Fairness Test
§ Agreements has to be mutual, full disclosure of assets of both parties, no fraud.
o Substantive Fairness Test
§ Full disclosure of assets, parties end up in substantively same situation that they were before the marriage.
o In re Marriage of Spiegel (IOWA- 1996)
§ Parties here are AJ Spiegel and Sarah. Both had married before and children from previous marriage. He brings up issue of prenup, she refuses. But 10 days before wedding, says no. Atty drafted agreement and she receives 5 days before wedding. He tells here that it doesn’t really mean anything and bankers are telling him to sign. Under the terms of the agreement, all property would remain separate, salaries would be kept separate, and no alimony or spousal support in the event of a divorce. Atty negotiated three changesà spousal support in event of death, title of house j/t tenancy, and title to the car. Who paid for the atty?
§ Enforcement of the agreement is favored. Pre-marital agreement is just one of many factors. Person who is saying that agreement should not be enforced had BOP to show that agreement shouldn’t be enforced.
§ Test: test is that agreements that are substantively unfair are still binding if they were executed in a procedurally fair manner.
§ Holding: pre-nup was enforceable and reduced the amount of alimony from $7K to $3K.
§ Fraud: No claim of fraud here. Here reliance was unreasonable.
§ Duress: she had the alternative of canceling the wedding.
§ She was a smart woman and understood the agreement.
§ Fairness: her net worth actually went up after the marriage. She didn’t forfeit all of her marital rights and atty was able to negotiate some of the terms.
§ Why is she entitled to the $3K/month?
o In re Bonds
§ On way to Vegas for marriage, stopped by lawyer’s office and under the terms of the K, wife would receive $10k/month per child. And total $30/K. Circumstances change as get married and H making way more.
§ Trial ct. rejects W’s claim that the agreement not enforceable.
§ App court held that W’s estoppel claim didn’t work because W didn’t rely on H’s statements. Also, no transmutation of MVP Corp. because H bought properties just for himself. But deed transmutedà agreement said that transmutation can occur in writing and the deeds in writing.
o CA LEGISLATURE’S RESPONSE TO BONDS
§ § 1500- property rights between H and W can be altered by prenups
§ 1501- limits placed on who can enter into such Ks. Allows minors to enter into prenups if emancipated or otherwise capable of entering into K
§ 1610- defines prenups. Agreements btw prospective spouses in contemplation of marriage and become effective UPON marriage.
§ Property means interest current or future.
§ Agreement is enforceable without consideration and has to be in writing and absolutely must be signed by both parties.
o What rts and obligations parties have towards each other:
§ Rt to buy and control property
§ How property is distributed upon separation/divorce
§ Making of will or trust
§ Ownership rts and benefits of insurance policy
§ What law would govern the agreement
§ CAN’T WAIVE RT. TO CHILD SUPPORT
§ CAN’T WAIVE SPOUSAL SUPPORT if the waiver unconscionable at the time of enforcement.
o § 1615: prenup not enforceable if the ct. determines that the party against whom enforcement didn’t sign voluntarily
o Voluntariness:
§ Independent counsel
· Or waived in separate writing after being advised to get the assistance of atty
§ At least 7 days waiting period
§ Must be fully informed of their legal rts and have to be in writing and also have to acknowledge that they were told of these rts in separate writing.
· If party unrepresented
· Also, party must be able to speak & understand the language
§ Agreement must be signed absence of fraud, duress, undue influence
§ Fair and full disclosures of assets and liability
§ If no disclosure, the party against whom agreement enforced must have waived the rt to disclosure.
o Unconscionability
§ Examined at the time it was executed.
§ Full disclosure of the other pty’s assets, or must have waived in separate writing.
II. Marriage
v What is marriage?
o Why marry
§ Tax benefits
§ Show commitment to another
§ Religious reasons
§ So define marriage as legal, social and moral institution.
o Book
§ Moral terms: honesty
§ Social Terms: take care of each otherà Love, obey and serve promise made by wife and comfort and honor promise made by husband & FIDELITY!
§ Single ringà man is the provider
§ Man and wifeàwoman as the property of the man
§ Father gives away the bride
§ Promises, are they necessary?
o K
§ Offerà Proposal
§ Conditional acceptanceà when person says yes
§ Formal acceptance with “I do”
§ Considerationà “Vows—all that you give up”
o In CA § 300 Consent, issuance
§ Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by § 425
o § 308.5
§ Only marriage between a man and a woman is valid or recognized in CA.
o Requirements
§ It must be a personal relation.
§ It must be between man and woman.
§ Both parties must have consented to the agreement
§ Both parties must have legal capacity to consent
§ A marriage license must be issued
§ The relationship must be solemnized.
o Like any K there are certain factors that can render a marriage void.
§ E.g. someone is already married
§ Consanguinity/incest
§ Duress
§ Getting married for immigration/fraud
§ Capacity to consent, can’t be too young, intoxication
§ Inability to consummate the relationship
v How is Marriage Legally Regulated
o 301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.
o 302. An unmarried male or female under the age of 18 years is capable of consenting to and consummating marriage if each of the following documents is filed with the county clerk issuing the marriage license:
§ (a) The written consent of the parents of each underage person, or of one of the parents or the guardian of each underage person. AND
§ (b) A court order granting permission to the underage person to marry, obtained on the showing the court requires.[1]
o 303. If it appears to the satisfaction of the court by application of a minor that the minor requires a written consent to marry and that the minor has no parent or has no parent capable of consenting, the court may make an order consenting to the issuance of a marriage license and granting permission to the minor to marry. The order shall be filed with the county clerk at the time the license is issued.
o § 304. As part of the court order granting permission to marry under Section 302 or 303, the court shall require the parties to the prospective marriage of a minor to participate in premarital counseling concerning social, economic, and personal responsibilities incident to marriage, if the court considers the counseling to be necessary. The parties shall not be required, without their consent, to confer with counselors provided by religious organizations of any denomination. In determining whether to order the parties to participate in the premarital counseling, the court shall consider, among other factors, the ability of the parties to pay for the counseling. The court may impose a reasonable fee to cover the cost of any premarital counseling provided by the county. The fees shall be used exclusively to cover the cost of the counseling services authorized by this section.
o Voidable Marriage: Valid unless file for judgment of nullity
§ nullity restores status of unmarried
· must be brought w/in 4 years.
§ In case of minor, parent/guardian/conservator can bring action
· Or minor can w/in 4 years of reacing the age of consent, before age 22.
§ Can be brough during life of the other
§ Also be brought by former H or W
§ Reasons:
· Unsound mind
· Fraud
· Duress
· Physically incapable
§ Not voidable if already marred if H or W as absent for 5+ yrs or thought to be dead.
o § 2201. (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless:
§ (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.
§ (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.
§ (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.
o § 2211. A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:
§ (a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:
· (1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
· (2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.
· (b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:
o (1) Either party during the life of the other.
o (2) The former husband or wife.
· (c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
· (d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.
· (e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.
· (f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.
o § 2212. (a) The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons.
§ (b) A judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them.
v Limits on marriage
o § 2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.
o Age:
§ Of minor age (14)
· Capacity to consent
· Influence of older person
· Maturity
· Difficulty in fulfilling marital responsibilities
o Consanguinity
§ By blood (CFC § 2200- supra)
o Israel v. Allen
§ Brother-sister by adoption wanted to get married.
§ Court held that state has no compelling interest in prohibiting adopted siblings from getting married.
· No necessary detriment to family harmony
· No physical detriment to children
· No natural repugnance to this type of situation
o Judgment of Nullity
§ If you receive judgment of nullity, it is like the marriage never took place. It can be filed by anytime before child reaches 18 . . .
§ Consent by force was another ground for filing judgment of nullityà has to be filed within 4 yrs of the date of marriage.
§ If someone physically incapable for marriageà has to be filed in 4 years.
§ What should be the limits on state regulations on marriage. What is the purpose of each particular regulation and is the purpose legitimate and if legitimate, is the purpose being served by the actual regulation.
o POLYAMY—Practice of having more than one spouse.
§ Polyandry- practice of having more than one husband.
§ Polygymy- practice of having more than one wife.
§ Such marriage void from the very beginning. But two incidents when voidable if person marries of another person without getting divorced but completely unaware of spouse’s whereabouts for 5 years. OR former partner was believed to be dead and suddenly reappears. First spouse or either of new spouses can file for judgment for nullity.
§ Mormonsè now not legal and wasn’t the original intent of the Mormons and only came around 1852.
§ Congress passed Act that criminalized …
§ Raynolds v. U.S.
· Π marries one woman and believes morman and gains approval from church and marries 2nd wife. Then prosecuted for engaging in polygamy. Whether laws against polygamy violated free exercise of religion. Whether someone can violate a law because religiously believe that was wrong.
· Court’s holdingà doesn’t violate the constitution and doesn’t violate free exercise of religion
· Court reasoned that it wasn’t intended to protect polygamy through Free exercise of religious.
· Marriage is a civil social K regulated by law and if allow polygamy, it would destroy social relations.
· Law can’t interfere with religious beliefs but can interfere with religious practices (e.g. sacrifice animals).
· If allow this, religion will become greater than law.
· Criminally prosecute those whose religious basis from marriage
§ § 2201. (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless:
o (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.
o (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.
· (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.
§ See also §§ 2210 & 2211
o Former Ban on interracial marriages
§ Loving v. Virginia
· Facts: White man married black woman in District of Columbia where interracial marriages legal and then returned to Virginia. Then arrested one night at their home and charged with violating criminal statutes. The judge said leave the state for 25 years and won’t be incarcerated (the punishment was 1-5 years in prison).
· Holding & Reasoning: Supreme Court held the law unconstitutional because violation of the 14th Amendment Equal Protection Clause and the Due Process Clause. Even though law punished both whites and blacks, but the purpose of the law was to protect white supremacy. Law only bans marriages between whites and people of color.
· State argued that when 14th amendment, there was no intention on the part of drafters to abolish all bans on interracial marriages. Also presented scientific evidence.
o Same Sex Marriages
§ Trial court in Hawaii (1996) allowed same sex marriage
§ Defense of Marriage Act (DOMA)
· Family defined: b/t 1 man and 1 woman
· Spouse defined: opposite sex, who is husband or spouse
· States don’t have to recognize other state’s marriages if same sex
§ Baker v. Vermont (1999)
· Three same sex couples seeking marriage licenses
· Arguing that law discriminates- VT constitutional law should allow same sex under Common Benefits Clause.
· Not like equal protection analysisà higher standard of scrutiny here
· VT saying that same sex marriages would
o Maintaining uniformity
§ SCt. But VT has history of non-uniformity
o Bridging differences b/t sexes
o –diminish society’s perception of link b/t procreation & child rearing
§ SCt.: Btu we don’t have requirement to procreate w/opposite sex
§ SCt.: But depriving children of same sex couples from getting protection that children of opposite sex couples get
o Affect female & male roles
§ SCt: But no evidence that kids are better off w/opp sex than same sex
o Minimize complications of surrogacy
§ SCt: But opposite sex ones to use surrogacy, complicate it
o Discouraging marriage of convenience
o SCt: holds for Ps and SSM okay
§ History of discrimination not a basis
o Remedy here:
§ SSM can get same benefits, but laws will stay in effect temporarily so legislature can adapt to ruling.
o Don’t award a marriage licenseà that is up to the VT legislature.
· So Civil Union enacted in VTà differences btw marriage and civil unionà status of marriage not w/civil unionà institution of marriage larger than benefits
§ Domestic Partnership in CA
· Community property laws apply
· So subject to bankruptcy laws
§ Dissent in Bakerà not an issue of discrimination on sexual orientation, just discrimination on sex
· True but effectively discrimination on sexual orientation.
§ Lockyer v. City and County of SF (CA)
· Facts: mayor of SF decided to issue marriage licenses. As a result of this, about 4000 same-sex marriages were performed. Thought that law violated the constitution and felt that his duty to not follow this law.
· Issue: Whether under CA law the local executive officials have the authority to decide on the constitutionality of the CA laws and stop enforcing that statute because his/her beliefs that statute unconstitutional.
· You don’t have prior rulings from the court that same-sex marriage unconstitutional.
· Holdings: The Mayor did not have the authority to issue marriage licenses at all. The duty of the county clerk was administerial duty and no power to decide on the constitutionality of statutes. Responsibility to issue licenses is with the clerk and this duty is NOT discretionary. Must look at statute to see requirements. The mayor had no discretion and can only supervise what the clerk does and had no authority to expand the power. The mayor can’t decide not to enforce a statute that he/she feels is unconstitutional.
· Remedyà Marriages were void and had no legal effect.
· Justice Kennard argued that mayor exceeded his authority but said that lets not void marriages until we have a judicial ruling on this issue.
· Majority said the proper avenue would be for same-sex couple to file claim after being denied license.
§ Goodridge v. Department of Public Health (MA)
· Facts: Πs are 14 individuals from Massachusetts. All had committed relationships and some with children and each was denied marriage license.
· Issue: Whether government actions that bar same-sex marriages violates Massachusetts constitution?
· Court applies the rationale basis test. They don’t think marriage is a fundamental right. No gender distinction.
· Rationale Basis test:
o Statutes must bear a real and substantial relation to public health, morals, safety, . . .
o Equal Protection: That impartial lawmaker logically believes that classification will serve a legitimate purpose . . .
· Court applied Lowest level of scrutiny because maybe wanted to show that law wouldn’t even pass this low level.
· State’s arguments
o Favorable setting for procreation.
o Insure an optimal setting for raising children.
o Preserve scarce resources of the state.
· Court’s responses
o 1. Fertility is not a condition of marriage and many couple marry not to reproduce. Procreation arguments is a way to single out gays and lesbians
o 2. No evidence suggests that banning same-sex marriages somehow decrease the health of child raising. State conceded that people in same-sex couples may be excellent parents.
o 3. Absolute statutory ban on same-sex marriage is not rationally related to economy. No evidence that same-sex couples less dependent on each other than opposite couples.
o Πs are not seeking to undermine the institution of marraige but only seeking to get married.
· Court defines marriage as voluntary union of 2 persons as spouses to the exclusion of all others.
· REMEDYàvacated summary judgment, remand to trial court and trial court issue judgment consistent with this ruling.
· Based on the opinion, what options does the legislature have?
o MA court said that civil _____ statute not enough.
· Dissent: The constitutional protections are extended to individuals not to couples. This is not like Loving because not prohibiting individuals to marry from opposite race.
· Justice Sosmanà This easily passes rationale basis. There is scientific evidence that children who grow up in same-sex marriages suffer more then other kids.
§ P