Conflicts of Laws

Question 1

Key issues tested with family law

Answer 1

1. Full faith and credit
2. recognition of marriage
3. jurisdiction over divorce vs. jurisdiction over spousal support and property division
4. recognition of divorce
5. which state’s law governs premarital agreements

Question 2

FL-Full Faith and Credit

Answer 2

A state must recognize final judgments from other states if the judgment was on the merits and the state had jurisdiction.

Question 3

FL-Recognition of Marriage

Answer 3

A marriage which is valid under the law of the state where it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.

Some examples of issues that may violate public policy include incest or polygamy.

Examples of issues that do not violate public policy include blood test requirements, marriage license requirements, and recognition of common law marriage.

Common law marriage is virtually always tested when this principle is tested. So know that if the marriage is recognized by the state where the couple entered into the marriage, it will be recognized by all other states.

Question 4

FL-jurisdiction over divorce

vs.

jurisdiction over spousal support and division of property

Answer 4

Personal jurisdiction over both spouses is not necessary to render a divorce decree. The state rendering the decree only needs jurisdiction over the plaintiff spouse.

However, personal jurisdiction over both spouses is necessary to issue a binding property division order or support order. This embodies the concept of a “divisible” divorce decree.

Question 5

FL-recognition of divorce

Answer 5

A divorce decree must be granted full faith and credit by other states if the court rendering the divorce decree had jurisdiction to enter it.

Question 6

FL-which state’s law governs premarital agreements?

Answer 6

Some states will apply the law of the state where the contract was executed.

Other states (probably more numerous) apply the law of the state with the most significant relationship to the parties and transaction.

Question 7

Key issues tested with Civil Procedure

Answer 7

1. Klaxon doctrine
2. Change of venue
3. Statute of limitations
4. Choice of law clause in a contract claim
5. Corporations
6. Tort Claim
7. Real Property

Question 8

CivP-Klaxon Doctrine

Answer 8

A federal district court in a diversity case must apply the choice of law approach of the state in which it sits.

This removes parties’ incentives to forum shop.

Question 9

CivP-Change of Venue

Answer 9

A court may transfer a case to any district court in which it could have been brought if convenience and the “interest of justice” favor a transfer. When a case is transferred to a more appropriate forum under this rule, then the new (transferee) court must apply the laws that the original transferor court would have applied, including their state choice of law rules.

Note that the result is different if the case was initially filed in an improper forum and was transferred to a proper forum. In that case, the transferee court would apply its own law, rather than the law of the transferor court, since the transferor court would not have the power to hear the case in the first place.

If a case is transferred to a more appropriate forum, the law of the transferor court will apply.

Question 10

CivP-statute of limitations

Answer 10

Generally, a court will apply its own procedural laws even if the substantive laws of another state are applied to the case. A statute of limitations is generally considered procedural. Generally, a court applies its own statute of limitations unless the claim would be barred by the law of the state with a more significant relationship to the parties.

Exceptions:

• borrowing statute: some states have borrowing statutes that indicate that the other state’s statute should be used in certain cases.
• characterization: when a statute of limitations is specific to a particular kind of claim and was created by the law that created the cause of action to which it applies, courts will often characterize the statute of limitations as substantive.
  
  • traditionally, this was applied only when the foreign statute barred an otherwise timely action, not when it extended the time for bringing the action.
• interest analysis: some states will simply use an interest analysis to resolve choice of law issues, including statute of limitations issues.

Question 11

Contract claims

Answer 11

If a contract specifies the state law that it will be governed by, generally that law will apply.

The Restatement 2nd of Conflict of Laws provides that the law chosen by the parties will be applied unless:

1. the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, OR
2. application of the law of the chosen state would be contrary to a fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and which, under a “most significant relationship” test, would be the state of the applicable law in the absence of an effective choice of law by the parties.

Question 12

Corporations

Answer 12

The law of the state of incorporation governs existence, structure, and internal matters such as capacity, shareholders’ rights, etc.

Rights and liabilities (external matters) are determined by the state with the most significant relationship.

Question 13

Torts claims

Answer 13

A jurisdiction analyzes a specific tort claim under the “most significant relationship” approach found in the Restatement (Second) of Conflict of Laws. The Restatement lists four factors to determine which state has the most significant relationship to the occurrence and the parties:

ICDR

1. the place where the Injury occurred
2. the place where the Conduct causing the injury occurred
3. the Domicile, residence, nationality, place of incorporation, and place of business of the parties; and
4. the place where the Relationship, if any, between the parties is centered

Question 14

Real Property claims

Answer 14

A court generally uses the law of the situs for land, i.e. where the real property is located.

Occasionally, the state will characterize a dispute over real property as, say, a contract dispute, and look at which state has the most significant relationship to the property if it makes more sense in the given case.

Question 15

Key issues tested with Wills

Answer 15

1. validity of a will
2. personal property
3. real property
4. inheritances

Question 16

W-Validity of a will

Answer 16

At common law, the validity of a will was determined under the law of the state where the testator was domiciled at the time of his death.

Under the Uniform Probate Code (UPC), a will is valid if it complies with either the law of the state in which it was executed or the law of the place where the testator was domiciled when he signed his will or when he died.

Many non-UPC states have similar statutes.

Question 17

W-Personal property

Answer 17

The postmortem distribution of personal property is governed by the law of the state in which the decedent was domiciled at the time of his death.

Question 18

W-Real Property

Answer 18

The postmortem distribution of real property is determined by the law of the situs (the place where the property is located).

Question 19

W-Inheritance

Answer 19

Whether a child is entitled to inherit depends on the law of the intestate’s domicile at the time of death.

However, this is inapplicable to real property as the law governing real property is the law of the situs.

Answer 20

In general, marriages are valid where they took place and are recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid. It is likely that if two individuals who reside in a state permitting common-law marriage meet that state’s requirements for establishing a common-law marriage, recognition of the marriage does not violate public policy.