AnIllumination of Family Law
Family Law, Fall 2013, BYU Law, Prof. Wardle
Note: All this garbage is nice if you want to practice Family Law, but if you want to get a good grade in this class, you should dedicate a lot of time to studying practice exams, available from the library. Wardle will recycle those questions, even if they are not covered in the current textbook . . .
Contents
I.Introduction
A.Family Law and the Constitution/Traditional Approach
B.What is family?
C.Jurisdiction for Family Law Claims
D.Competing Principles of Modern Liberalism—The Trilemma—Fishkin
E.Non-Interference?
F.Utah
II.Pre-Marriage Issues and Marriage Essentials
A.Rings in Broken Engagement/Damages for Calling off Wedding
B.Fraudulently Induced to Marry
C.Making Prenuptial Agreements
D.Interpreting Prenuptial Agreements
E.Marriage with a Minor
F.Competence & Consent
G.Bigamy
H.Incest
I.Same-Sex Marriage Bans
J.Transgender Marriages
K.Constitutional Issues
1.Race Restrictions
2.Marriage and Substantive Due Process
3.Polygamy
4.Same-Sex Marriage
5.Minors
L.Marriage Formalities
1.Licensing & Solemnization
2.Common Law Marriage
3.Covenant Marriage
4.Attempted Marriage/Quasi Marriage
5.Choice of Law
6.Comparative Marriage Regulation
III.Legal Regulation of Parentage Creation
A.Parental Rights with No Marriage
B.Non-Marital Children Born in a Marriage
C.Legitimacy
D.Parentage/Parental Responsibilities
E.Surrogacy
F.Dual Parenthood
G.Disposition of Frozen Embryos
H.Adoption
1.Voluntary Termination
2.Involuntary Termination
3.Placement of Children
4.Legal Consequences of Adoption
5.International and Interstate Adoption
6.Indian Child Welfare Act
I.Preventing Parentage
1.Contraception
2.Abortion
IV.Legal Regulation of Ongoing Spousal Relations
A.Marital Status/Financial Incidents
B.Marital Property Regimes
C.Doctrine of Necessaries
D.Medical Decision Making
E.Testimonial Privilege
F.Heart Balm Causes of Action
G.Spouse Abuse
1.Married People
2.Protective Orders
3.Non-Marital Violence
V.Legal Regulation of Ongoing Parent-Child Relations
A.Emancipation
B.Child Liability
C.Juvenile Courts
D.Abuse and Neglect
E.Constitutional Parental Rights
F.Limits on Parental Rights
G.Religion and Children’s Rights
H.Children’s Interests and Rights
I.Medical Rights
J.Child Support and Parent Support
K.Parental Liability and Immunity
1.Family Members Suing Each Other
L.Uniform Transfers to Minors Act/Uniform Gifts to Minors Act
M.Rights of Other People Who have Developed Relationships with Kids
1.Grandparent Rights
2.Stepparents
3.Foster Families
4.Non-Marital Partners
VI.Divorce and Whatnot
A.Jurisdiction
B.Procedure
C.Fault Divorce
1.Defenses
D.No-Fault Divorce
1.Noneconomic Consequences
2.Divorce Reform
3.Comparative Law
4.Alternatives
5.Utah
E.Property Distribution
1.Complex Property Distribution
2.Tax Consequences
3.Other Random Cases
F.Alimony
1.Kill Alimony
2.Tax
G.Separation Agreements
1.Bankruptcy
H.Terminate Quasi-Spousal Relations
I.ADR
VII.Children in Divorce
A.Inter-State
B.International Custody
C.Utah Custody, More Generally
VIII.Child Custody
A.Historical Approaches
B.Best Interest of the Child
C.Experts, Custody Evaluations, etc.
D.More Custody
E.Modify Custody
F.Relocation
1.Class Notes
I.Introduction
A significant part of family law relates to the legal creation or recognition of family relationships and the rights, duties, benefits and privileges that flow therefrom, and another part of family law relates to the dissolution or disestablishment of family relationships and sorting out the rights, duties, benefits and privileges that result.
You can view it in terms of laws about the creation, maintenance, and dissolution of horizontal relationships (spouse-like) and vertical relationships (parent-child like).
Family law started with the ecclesiastical courts. It is still there in some foreign countries. Religion has influenced family law. Family law was once aspirational. Now, it is accommodating. As a general matter, family law belongs to the state courts—often to the intermediate appellate court.
Family is an important part of society. It is the building block, etc. A nation cannot rise higher than the status of the family.
Jurisdiction over parties? 1) Does statute or common law authorize assertion of jurisdiction? 2) If so, is it constitutional? 3) If so, has the law been followed?
A.Family Law and the Constitution/Traditional Approach
Figuring out traditional v. functional is significant because it deals with the benefits the government will give to families.
Moore v. City of East Cleveland, 431 U.S. 494 (1977): The law was restrictive as to what qualified as a family for single-family dwellings. The Court’s decision reflects that the law was a violation of substantive due process. Basically, this interference was not tailored adequately to honor family rights rooted in history or tradition or implicit in concepts of ordered liberty. Some of the other justices argue that this is more of a rational basis matter. The plurality was in favor of a larger conception of family that included close relatives with some degree of kinship.
Family law started creeping into constitutional questions with cases like Meyer v. Nebraska, in which the prohibition on teaching foreign languages was struck down as interfering with family decisions
B.What is family?
Braschi v. Stahl Associates Co., 543 N.E.2d 49, (1989): Not federal constitution, but this is an example of a court taking a functional approach to determine that a gay couple was functioning as a family and thus qualified for the rent control statute.
Traditionally, the term family has included persons related by blood, marriage, or adoption, and in law as in colloquial usage, that is still the most common and the default meaning. The legal meaning of the term family is not unitary. It does not necessarily mean the same thing in every statute or legal context. Rather, it has many meanings and statutes vary in defining family. In Moore, the Supreme Court was going respectably broad, looking to history and tradition. Some say that self-definition should count. Perhaps that would fit under concepts of ordered liberty.
Also, there is a difference between formal and functional definitions, and some that even argue for a self-definition standard. What are the advantages? Formality leads to efficiency. What are the disadvantages? Functional leads to extensive legal analysis. Self-definition leads to gaming of the system, perhaps.
States are supposed to define and regulate marriage. That is part of what helped kill DOMA.
The Supreme Court generally used to stick to a highly traditional version of family, though it is now departing. Eva Rubin argued that the family tradition is a mythological construct based on the Bible.
C.Jurisdiction for Family Law Claims
There must be a law that asserts jurisdiction. The law must be constitutional. And, the law must be followed.
Generally, in personam jurisdiction is required for pecuniary or property claims. Determination of relationship status is not in personam.
Ankenbrandt v. Richards, 504 U.S. 689 (1992): The federal courts have previously employed a domestic relations exception for stuff that technically would qualify for diversity jurisdiction. The exception’s origin is questionable, but we will uphold it. It only applies to divorce, alimony, and child custody. [The Court seems to have not thought about child support or adoption.] Here, the claim is for torts, so the lower court cannot dispose of it based on the domestic relations exception.
D.Competing Principles of Modern Liberalism—TheTrilemma—Fishkin
- Merit: limited goods and opportunities ought to be distributed on the basis of merit.
- Equality: People should have equal opportunities to compete successfully for good and opportunities on the basis of merit—these opportunities should not depend upon immutable characteristics such as race, sex, etc.
- Family Autonomy: State should not intervene in family relations, child rearing, etc.
E.Non-Interference?
Family autonomy concerns allowing the family unit to resolve internal matters without judicial interference and also involves protecting the family from outside interference—i.e. the government.
As a general rule, courts will not attempt to settle intra-family disputes regarding the domestic rights and duties of family members inter se in an ongoing family. The exceptions to this rule generally fall into three categories:
- The family is breaking up or has broken up (e.g. upon death, incapacity, divorce, separation, desertion, abandonment, emancipation)
- The family has failed to function as a family ( e.g. in cases of neglect, abuse, abandonment, etc.).
- The conduct complained of involves a violation of exceptionally strong public policy (e.g. if the life of a child or incompetent adult is at risk, child labor, compulsory education, polygamy, etc.).
F.Utah
Utah does not really have an overarching definition of family. It defines it for reach statute. Parent-time seems to be tied into claims grandparents might make.
There is argument that tortious act and injury inside of Utah can lead to people having sex outside of Utah becoming amenable to jurisdiction.
II.Pre-Marriage Issues and Marriage Essentials
A.Rings in Broken Engagement/Damages for Calling off Wedding
States differ on the matter. 1. As per Campbell v. Robinson in S.C.: Ring is a conditional gift that can be called back before marriage, unless something changes in status. Person holding ring would have burden to demonstrate that it is not an engagement ring or that it subsequently became their property. Basic gift law is followed, not fault like in a divorce. 2. No fault and ring goes back to buyer. 3. Purchaser if mutually called off or if holder of ring was at fault. This method is unpopular because it is difficult to determinewho called off the engagement or whose fault it was or if it was justifiable.
Jackson v. Brown, Utah 1995: Guy called of marriage because he actually was married, already. Court did not want emotional rights of action. There is recovery for IIED and economic problems only.
B.Fraudulently Induced to Marry
Courts can annul fraudulent marriages. In most states, that means that it will be treated as if the marriage never happened. In order for annulment, there needs to be fraud touching the conditions essential to marriage. Essentials easily includes ability/willingness to have sexual relations, bear children. Heroin addictions and anti-Semitism has qualified. Fraud as to wealth, social status, and feelings does not qualify usually.
Once discovered, the fraud can be forgiven. Marital relations is typically the sign that this happened. If it has been forgiven, the annulment cannot happen.
Montnegro v. Avila—gigolo got imported, siphoned money, refused to have children, etc. Court determined that woman discovered fraud late into marriage, did not forgive, behavior seemed to suggest the guy never intended children.
Wardle suggests that judges will often fudge fraud for the right case.
Utah: Jaacke v. Glenn: Lady lost job because of marriage to felon. The Ct. App. allowed annulment because of the seriousness and her lack of complicity.
C.Making Prenuptial Agreements
Generally, they must be in writing and focus on economic matters. The validity of a prenuptial agreement is dependent upon its valid procurement, which requires its having been executed voluntarily, with knowledge of its content and legal effect, under circumstances free of fraud, duress, or misrepresentation.
Independent counsel is desirable, but if the terms are clear and there was sufficient opportunity for party to seek independent counsel, the lack can be ignored. In W.Va., the presumption of validity for prenuptial agreement applies only when independent counsel was involved. Otherwise, enforcer needs to prove everything.
Many states require full disclosure of assets.
Unconscionable can kill—but states differ whether it must be unconscionable at time of agreement or time of effect.
Ware v. Ware: W. Va.: Owners of pizza joint. Lawyer explained a bunch of stuff.
Dove v. Dove: 1. No fraud, duress, mistake, misrepresentation, or nondisclosure of material facts. 2. Agreement not unconscionable. 3. Taking into account all facts and circumstances, including changes beyond contemplation at time of agreement’s execution, enforcement would be neither unfair nor unreasonable.
Beesley, Utah, 1994: Failure to disclose was immaterial because she would have signed anyway. Was there coercion? Court was not convinced, even though lady had moved from Texas and was nearly stranded in Utah.
Utah, Uniform Premarital Agreement Act: Agreement void for involuntary or (fraud + lack of disclosures that were possible + not waiver of disclosure + could not have reasonable had an adequate knowledge of the property). Further, cannot kill alimony to point that they would be eligible for public assistance.
Policy: If they kill agreements, people might not get married. But they don’t want to ignore bad situations. States don’t want marriage to be an economic investment with people jumping ship if finances go bad.
D.Interpreting Prenuptial Agreements
Courts should stick to the writing of the agreement. Language governs, provided that it is clear and explicit and does not involve an “absurdity.”Also, mutual intention of parties is relevant. Ambiguities should be resolved against the party creating them. An agreement needs to be pretty broad.
Deschamps, Montana, 2009: Agreement did not really address improvements. The wife not getting the worth of what she contributed would be absurd. Husband loses.
E.Marriage with a Minor
Depending on the jurisdiction and specific laws/situation, it will be void ab initio or voidable by a person with standing to petition for the marriage to be annulled based on the defect. If the defect is cured, the marriage can be ratified.
Public policy would dictate whether it should be void or voidable. Public policy might argue who is getting married for what reason, pregnancy, maturity, etc. Also best interest and competency would be relevant.
In Robinson v. Commonwealth, the creeper was pulling naughty stuff with a very young girl. Some of the rape charges were dropped against him because of the marriage and because that marriage was merely voidable instead of void. The court determined that the marriage was voidable based on parsing public policy from statutes addressing the marriage of minors. The dissent argued that the situation was something that the public policy should not support.
UTAH: Void as per statute. But, Utah seems to take a voidable approach. A court can decline to annul a marriage for best interests.
F.Competence & Consent
Lack of competence or consent can result in the marriage being voidable and, perhaps in some cases, void. Policy is that you want competent people to make good decisions about marriage, but you want to preserve marriages, limit the negative effects on children, etc. Ratification is allowed.
Clark v. Foust-Graham features the trial court tossing all but the question of undue influence where the black realtor married the old racist. Undue influence involved 1) a person subject to influence, 2) and opportunity to exert influence, 3) a disposition to exert influence, and 4) a result indicating influence. Old guy was subject, there was opportunity, disposition aka motive, and a result odd enough to suggest an influenced result. Standing was questionable, but the suit began while guy was alive and daughter was GAL.
G.Bigamy
Bigamy is illegal in all states. Spawns from polygamists, fraudsters that disappear with the bank account, and people who jump the gun after a divorce decree is entered. Generally, it will be void, but ratification seems possible after removal of the impediment.
Putative spouses (as in good faith, color of law) have some rights, but they cannot totally trump other putative or legal spouses.
State v. Clements, South Dakota 2013: Because bigamous marriages are void, defendant argued the marriage never occurred and that it was impossible to commit the crime. The court held that it is the appearance, etc.
UTAH: VOID.But, putative spouses recognized.
H.Incest
The further East you go, the more likely you will find states allowing closer degrees of sanguinity, but generally, anything in four degrees of consanguinity is bad. You can marry on the fifth degree. It will be void, unless the state where it happened allows it. Full faith and credit allows marriages from other states unless the current state has an extreme public policy against it.
In Mason v. Mason, the court declined to void the marriage because the state’s policy was not insanely against first cousin marriages.
IRS looks to validity in place marriage happens.
Utah: Void
I.Same-Sex Marriage Bans
Obergefell v. Kasich, Ohio 2013: Ohio law bars recognition of same-sex marriages, even if enacted outside of estate. However, this court, moved by the sob story and paying lip service to rational basis, legitimate state purposes, etc. prevents the state from denying this particular marriage.
States will specify status of marriage and one man and one woman. Other states declare they will not recognize anything but one man and one woman. Some give legislature power to reserve marriage to opposite-sex couples.
Utah: Void
J.Transgender Marriages
For purposes of determining whether a marriage is legit based on gender requirements, states differ as to how gender is determined. Some go off their parts, birth, chromosomes (most common?). The time of testing is at time of marriage.