Family Law

• Purpose of marriage “be fruitful and multiply” and raise Christian Children
• Marriage as a sacrament

Entered into by force, fear, fraud, inducement of others

Divorce from bed and board; removes obligations, but cannot remarry; due to adultery or abuse

• Once married, wife’s legal existence suspended or extinguished (two becoming one flesh)
• Wife’s property became husbands; wife could not earn, contract, sue, etc.
• Husband had proprietary interest in services of wife and children and could sue for loss of them
• 1872 Bradwell v. Ill: Supreme Court says mission of women is wife and mother as it is “law of the Creator”
• Husbands duty to support his wife

• “Full faith and credit shall be given in each state to the public acts records and judicial proceedings of every other state
• Judgements in one state are generally given faith and credit in another
• Defendants cannot challenge a judgement in another state or obtain a second or greater recovery
• Modern Examples “same sex marriage”

6 month waiting period before you could remarry because it was encouraged to reconciliation (work it out get back together)

Anyone who trespassed upon husband’s property by seducing wife was liable for damages
- Defenses to alienation of affection: parents could do so to protect child welfare (if no ill will or unreasonable)

The marriage neveer happened (void)

Ending the marital relationship

• Damages? Loss of reputation, mental anguish, injury to health, compensatory damages, loss of “social advantages”
• Seduction under promise to marry punitive damages when acts were malicious or fraudulent (seduction damages to father, breach of promise damages

• Court says: there has never been a time when polygamy has not been a punishable offense against society
o Distinction between religious belief and religious practice
o “Laws are made for the government of actions and while they cannot interfere with mere religious belief and opinions, they may with practices.

Married first wife, but spiritually married to next wife, repeat, divorced first wife, legally married final wife, all other wives left – only one legal marriage

Yes, recieves Strict Scrutiny – Court cannot conceive of a valid legislative purpose
- Marriage is a fundamental rights

Reasonable regulations that do not significantly interfere with decisions to enter into marriage may legitimately be imposed

Insurance benefits for disabled dependent child discontinue if they marry a person not eligible for SS. Married persons less likely to be dependent on parents.
- Rule terminating benefits isn’t invalid because some persons who might have otherwise have married were deterred by it or those that did marry were burdened

refusal to rent to unmarried partners based on religious beliefs.
o Mixed state decisions
o Some states still allow housing discrimination for unmarried couple

you cannot be related
o Birth defects, biblical reasons, family discord

relationship contracted by marriage between husband and wife’s kindred (family) and wife and husband’s kindred (family)
o Usually no blood relationships so it’s generally alright

disrupts family harmony; detrimentally affect adoption process
o Some states allow

States can bar these types of marriages
o Bigamy – adding a spouse while legally married
o Polygamy – married to two
o Polyandry – more than one husband
- Need Criminal Intent

“Enoch Arden statutes” – when person remarries while believing current spouse is dead (requires good faith). Permits spouse to remarry without criminal liability after 5 yrs.
- Other Defenses: Insanity, intoxication, duress, belief that one is divorced

Voidable if within age of parental consent
- If parents go along, they waive their right to complain
Void if not within age of parental consent
Defenses to age?
- Constitutional challenges to age limits receive- Rational Basis Review

Generally parental consent required at 16/17. States disagree about whether both parents must consent.
o Parents waive their right to annul a marriage of their child if they acquiesce to the marriage

16/17 both parents consent or judicial approval
UMDA –model statute that defines marriage and divorce. UMDA has been partly enacted only in a handful of states
• Ohio has not adopted UMDA

Sometimes states have reduced license fees if you complete premarital education.
Topics—marriage as serious, business, conflict management, encouraging marital counseling if needed

People who have a conservator/ guardian may marry in most jurisdictions with permission (no consent? No property rights)

Venereal diseases (not a common thing and if not all the way out then going to be soon)
o Use of blood test/ health questionnaires today: Supreme Court says blood test are prevalent and routine
o HIV Testing? Must be voluntary and confidential. Prohibiting marriage by someone with HIV goes against ADA—Utah

For government benefits: proof of the marriage

Who may conduct ceremony, number of witnesses, who can issue license (Not strict on compliance “Reasonable expectations”)

• Generally, a public ritual with witnesses and a celebrant provides evidence of the marriage
• Judges, mayors, clergy of all major denominations, “commissioned official of the salvation army” Maine allows lawyers

Utah says “one who so cavalierly becomes a minister might not appreciate the gravity of solemnizing a marriage” Might also indicate same attitude of participating couple

• Currently recognized in some form in 15 states. Ohio if created before Oct 10, 1991
• What is it? Marriage that takes legal effect w/o license or ceremony when a couple live together as husband and wife, intend to be married and hold themselves out as married couple

Origins—natural right, helped protect children, assisted women from becoming state dependent, lack of religious, officials and travel difficulties

no preexisting marriage, no familial relationship, minimum age. Evidence of an agreement with cohabitation, reputation (things the court will look at to determine if there is a common law marriage)

undermine tradition and sanctity. Vulnerable to fraud and perjury, opens the door to false pretenses of marriage

all the same rights of a regular spouse

on person claiming. Clear and convincing in Ohio preponderance of the evidence inn other states.

Short-term relationship—short trips to states that recognize common law marriage? Generally, not recognized

• Used mostly with deployed military. Defects make it voidable, but not invalid. Available to aliens in limited circumstances.
• UMDA (Uniform Marriage and Divorce Act) —recognizes proxy marriage if the proxy acts with written authorization

3 states—Contract that require mandatory premarital counseling. Declaration of intent to attempt to preserve the marriage, including marriage counseling. Limits grounds for divorce

Defined as—void marriage recognized with limited legal consequences despite its invalidity. Requires at least one innocent party. Terminated by death or removal of the impediment to marriage
( Example—solemnized in another country and celebrated in good faith by one party)
• UMDA—anyone who has cohabitated with another in good faith belief that they were married is a putative spouse until knowledge otherwise. Can have putative and legal spouse.

Only in California—first live together as husband and wife. Must be of marriageable age. Not necessary to file health certificate or get a license. Ceremony of solemnization and record of the marriage on file with clerk (private and only viewable with good cause)

Created without the intent to live together as husband and wife. Mutual consent and bona fide agreement of the parties, freely given and with the intention of entering into a valid status of marriage are fundamental and essential elements. Otherwise, marriage invalid
o example: used for immigration

Fundamental right to marry more compelling than state’s interest. incidental interference is ok

• Emancipation is never presumed. Burden is on party asserting it.
• 3 ways to get emancipated
o expressed parental consent
o implied parental consent
o by a change of the child’s status in the eyes of society
ex; military or marriage

• party asserting invalidity has burden of rebutting by conclusive evidence
• the most recent marriage would be deemed valid

• At common law a women assumed her husband’s name
• Now, a women may keep her birth name or take her husband’s name, or the husband can take the wife’s last name (absent fraudulent intent)

• At common law, men could not be found guilty of raping his wife (implied consent)
o the wife was considered property and her identity merged with her husband
• Now states have abolished or limited marital rape exception

Spouse cannot be examined at trial for or against spouse, without consent. Only for conversations held during the marriage. Doesn’t apply with criminal action for one spouse vs. the other

essential for grounds. affected property decisions and support. jury trials common

Adultery
Desertion
Constructive Desertion
Mental and Physical Cruelty

circumstantial evidence allowed. had to show
o disposition on defendant and paramour to commit adultery; and
o an opportunity to commit the offense

o physical separation
o without consent and against will of spouse
o no justifications
o presumption that separation is with consent of husband

justifiable separation due to misconduct abuse

Some states require actually violence

- Unclean Hands
- Recrimination
- Condonation; Collusion, and connivance
- Insanity

Petitioner files in court without serious fault

Non-petitioner was actually guilty of fault "no you committed adultery"

Express or implied forgiveness, agreement to a falsehood, consent to adultery

Marriage is important to the church

- Separate and Apart
- Incompatibility
- Irreconcilable differences
- Irretrievable breakdown for the marriage

Prior to no-fault revolution
- living separate and apart for a period of time to divorce without proving fault

Divorce dismissed, then goes to probate

Connflict of personalities as to destroy the legitimate ends of matrimony and the possibility of reconciliation must be proven

Court can issue divorce based on domicile jurisdiction over one party but doesn’t have authority to determine financial responsibility because of lack of personal jurisdiction over other party

Be voidedby party with legal disability

Contrary to public moral, innvalid from inception

Appropriate notice to defendant = reasonably calculated under all the circumstances to apprise interested parties of the pendency of the action annd afford them an opportunity to be heard

o transitioning into two different living arraignments
o territorial with clothes/ toys etc

Decision-making

both parents make decisions

Resides primary with one parent

Resides in both homes

Residential and Non-residential Parent

Approved by the Court

Cooperate, sometimes joint physical and legal custody

Contact between parents minimized

Visits or Exchanging them to the other parent (supervised when these occur)

Example would be if one parent is in jail

Presumption was father gets custody as head of household; mom had no rights at CL

No used anymore because violated equal protection clause

(1) the sex and age of the children; (2) the characteristics and needs of each child; (3) the respective home environments offered by the parties; (4) the characteristics of those seeking custody; (5) the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children; (6) the interpersonal relationship between each child and each parent; (7) the interpersonal relationship between the children; (8) the effect on the child of disrupting or continuing the existing custodial status; (9) the preference of each child of sufficient age and maturity;
(10) the report and recommendation of any expert witnesses or other independent investigators; (11) available alternatives; and (12) any other relevant matter the evidence may disclose

o preparing/ planning meals
o bathing/ grooming/ dressing
o medical care
o arranging social interactions
o childcare
o bedtime/ wake up
o education/ teaching
o discipline

Court says they should be considered, but are not conclusive for a custody issue/ factor

UMDA: says yes consider
Ask child's wishes with an in camera interview
But Child should not be directly asked where they want to live bc of parental manipulation/ intimidation or child manipulation

Court must state whether child’s best interest is served by conducting the interview and whether child is of sufficient age to form an intelligent preference

NO, cannot favor religion over annother, but can factor in parent behavior that affects health/ well-being of children

May consider effect of parental disability on a child UMDA says courts can consider mental/physical health of the parties but can’t discriminate against parents with disabilities.
Case by case determination.

The primary factors are stability and continuity of caregiving

• Parents have a constitutionally protected liberty interest in ongoing contact with their children. • UMDA—parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds after a hearing that visitation would endanger seriously the child’s physical, mental, moral, or emotional health
• Custody, parenting time, child support is modifiable
• CHIlD SUPPPORT AND PARENTING TIME DO NOT AFFECT ONE ANOTHER