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FAMILY LAW > QUIZ 1 MATERIAL > Flashcards

QUIZ 1 MATERIAL Flashcards

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1
Q

Where does family law come from?

A

State laws, court

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2
Q

Within Legislative regulation, what do State Legislatures do?

A

traditionally regulate most family law issues, such as marriage and divorce.

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3
Q

Within Legislative regulation, what is Congress?

A

has increasingly become involved in family law, including legislation regarding child support and child custody.

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4
Q

All legislation is subject to what?

A

subject to Constitutional limits

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5
Q

What is Marriage defined as within State Regulation?

A

-considered a “status” based on contract and established by law

-The state has the authority to regulate marriage based on the general welfare of its citizens.

-A movement in a minority of states exists to consider marriage a “contract” as opposed to status.

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6
Q

What is the court’s role in Judicial regulations?

A

to “interpret” the state legislation & apply it to the current factual situation

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7
Q

Within Judicial regulation how many approaches are there? what are they?

A

2 Approaches:
-Legal Formalism: follow precedent exercise judicial restraint; logically-based

-Legal Functionalism: primary concern is socially desirable consequences; result-oriented approach

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8
Q

Within Federal courts, what is the - Domestic Regulation Exception Rule

A

federal courts do NOT have jurisdiction to grant divorces, award spousal support, or determine child custody issues.

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9
Q

What can federal courts do?

A
  • can hear issues based in tort or contract law, even if family law issues are involved.
  • can also adjudicate the constitutionality of state statutes regulating the marital relationship
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10
Q

What are some overall things that are within the Traditional Family?

A
  • Traditional religious laws regulating families controlled for centuries
  • With the Protestant Reformation, English civil courts took over the regulation of family law matters.

-English law regarding adopted by the American colonies

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11
Q

What was it like within the Early 20th Century Assumptions in the American & European Legal Systems?

A
  • marriage was a primary support institution & a decisive determinant of social status
  • marriage lasted until death and was only terminated in serious situations
  • community aspect of family emphasized over the individual
  • Husband-father had the dominant role
  • Procreation was the major purpose of marriage
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12
Q

What were some results of the change in the 20th century’s structure of traditional marriage?

A
  • “Two Paycheck” Families
  • Dramatic increase in the divorce rate with the institution of the “no-fault” method of divorce
  • Increase in the number of children living in single-parent homes
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13
Q

There has been a movement back towards the idea of a “traditional family”….. what happened?

A
  • Covenant Marriages: parties agree to premarital counseling and terminate their marriage on traditional “fault” grounds
  • Some states make it difficult to get a divorce & returning to the “fault” system
  • Requiring some pre-marital education
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14
Q

What are covenant marriages?

A

parties agree to premarital counseling and terminate their marriage on traditional “fault” grounds

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15
Q

What is it like in the Nontraditional Family?

A
  • Some scholars suggest that marriage is no longer a viable model by which to evaluate “families” in this country
  • Can traditional family law deal with modern realities? Or do we need new laws to adequately address the changing family picture?
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16
Q

What is Meyer v. Nebraska?

A

-Meyer v. Nebraska: recognized that the right to marry is a fundamental constitutional right under the Due Process Clause of the 14th amendment

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17
Q

What comes within constitutional parameters?

A

For a state to regulate marriage, it must have a legitimate state interest that justifies the restriction
-ex: setting a minimum age to marry

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18
Q

What is the right to privacy?

A
  • Not specifically mentioned in the U.S. Constitution
  • Douglas: the right is found in the “penumbra” of other fundamental rights
  • States cannot forbid married couples from using contraception (Griswold v. Connecticut)

-Right to abortion (Roe v. Wade) before Dobbs v. Jackson Women’s Health Organization (2022)

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19
Q

What is the Due Process Clause?

A

legalizes same sex marriage

ex.) the definition of “liberty” here is crucial to the majority opinion within Obergefell v Hodges.

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20
Q

What is Equal Protection Law?

A

Equal Protection Law: meant to prevent discrimination (based on gender, age, disability)

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21
Q

What is Marriage considered as being? How does the state regulate marriage?

A

considered a “legal status” based on contract.

  • the state can regulate marriage based upon the general welfare of the people of that state:
    -Age at which you can marry
    -Property law implications
    -Social Security benefits
    -Health care decisions
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22
Q

Consensual Alternatives of marriage are?

A
  • In the last 30 years, there has been a substantial rise in nonmarital cohabitation

-Both homosexual and heterosexual couples

  • How do you resolve disputes between two parties who were not married, but lived together as a family?
    - Do you apply contract law?
    - Or do you apply the same “status” laws that apply to married couples?
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23
Q

Within Nonmarital Cohabitation, what are some contract implications? What are the 3 main approaches?

A

-Most courts are going to approach these cases from a contract law position

3 Main Approaches:
-An express or an implied contract is actionable, as long as the contract is NOT based on sexual activities (Martin v. Marvin)
-Only express nonmarital contracts are enforceable, as long as not based on sexual conduct (NY- Morone v. Morone)
-Nonmarital contracts are not enforceable based on public policy (Hewitt v. Hewitt- Illinois)

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24
Q

What are some Property issues in Nonmarital cohabitation?

A

-What if a couple later marries? What happens to the property they acquired BEFORE they got married?

-Some courts have adopted a “legal merger” theory allowing the judge to consider both premarital and post-marital property together upon divorce

-The majority of states will NOT divide premarital property upon divorce.

-They consider it “separate property.”
What if the couple never marries? What happens to the property they accumulated together?

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25
Q

What is Minority view?

A

will apply marriage statutes on distribution of property to the case

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26
Q

What is majority view?

A

most courts have refused to apply divorce statutes to unmarried cohabitants.

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27
Q

In -Nonmarital Cohabitants: Domestic Partnership & Civil Unions, what do they state?

A
  • Some cities & states passed “domestic partner” ordinances or statutes that provided non marital cohabitation with the same legal & status rights as married couples
    -Applied to both same-sex & Heterosexual marriage
    -Some employers are extending benefits to domestic partners regardless of legislation prior to the legalization of same-sex marriage
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28
Q

What is known from Same-sex marriages?

A

-Lawrence v. Texas (2003)
-One of the precedents in the movement towards same-sex marriage
-Primarily based on the right to privacy

  • Under the federal Defense of Marriage ACT (DOMA), other states did NOT have to recognize a same-sex marriage as valid if it came from a jurisdiction that permits them
    • signed by Clinton in 1996
      • Many states also passed similar legislation or made amendments to their state constitutions
    • DOMA irrelevant after Obergefell in 2015
      -U.S. v. Windsor (2013)
      - Strikes down Section 3 of DOMA was unconstitutional
      -Federal benefits (ex: taxes)

-Massachusetts was the 1st state to recognize same-sex marriages in 2003
-Now legal in ALL states after the Supreme Court ruling in Obergefell v. Hodges

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29
Q

What comes within Obergefell v. Hodges?

A

-Due Process Clause (DPC): the definition of “liberty” here is crucial to the majority opinion within Obergefell v Hodges.

-The DOMA (Defense of Marriage Act) is no longer relevant → thrown away in 2016

-Same- sex marriage

-5-4 decision

-Holding (rule of law coming from the case):: 14th Amendment requires a state to:
- License a marriage between 2 people of the same sex
- Recognizes a marriage between 2 people of the same sex when their marriage was lawfully licensed & performed out-of-state

  • On June 26th, 2015, the U.S. Supreme Court ruled in a landmark decision that the 14th amendment requires all states to license marriages between same-sex couples & to recognize all marriages lawfully performed out of state.
  • Each petitioner in this sought certiorari, & argued that the actions of the relevant respondent violated the 14th Amendment by either denying them their right to marry or by denying the recognition of their marriage legally performed in another state.
  • The liberties protected by the DPC extend to choices that are central to a person’s dignity & autonomy, including intimate choices about personal beliefs and identity
  • Banning of same-sex marriage leads to imposing “stigma & injury of the king prohibited basic charter”
  • Guaranteed by the Equal Protection Clause
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30
Q

What did civil unions provide?

A
  • Gave many of the legal rights of marriage, without officially sanctioning same-sex marriage
  • An option used by some states prior to the legalization of same-sex marriage in the U.S.
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31
Q

What is Formally Statute Marriage?

A

Obtain a license prior to marriage
Married by an authorized party

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32
Q

what are the 2 types of state laws within marriage?

A

Directory Statutes & Mandatory Statutes.

1.) Directory Statutes: requires substantial compliance with the regulations

2.) Mandatory Statutes: requires strict compliance with statutory requirements for the marriage to be valid. This is the minority view.

33
Q

In Informal marriages, what is common law?

A

Common Law: a present intent & agreement of the parties to enter into a matrimonial relationship
-Valid in only a few American jurisdictions
-Most states will recognize a common law marriage if it was validly created in another jurisdiction
-If both parties are not yet divorced when they begin living together, some states require a new agreement to marry after the divorce is final

34
Q

What are putative marriages (within the informal marriages section)?

A

one or both of the parties aren’t aware of an impediment blocking their formal marriage
-An informal “curative” marriage
-Good faith belief the marriage was valid by at least 1 party
-Provides property rights, death benefits to the putative spouse

-(Example: the parties did not know their marriage license expired and was invalid)

35
Q

What is Marriage by Proxy (within the informal marriages section)?

A

designating a “stand in” to appear for an absent spouse or participation via telephone
-Split of authority in the U.S.

36
Q

What is DeFacto marriage (within the informal marriages section)?

A

a relationship between unmarried cohabitants that usually lacks any legal recognition
-Does not meet the requirements for any other type of marriage

37
Q

What is Marriage by Estoppel (within the informal marriages section)?

A

one party is “estopped” from challenging the validity of the marriage
-Most common in 2nd marriages where the individual “remarries” after an invalid divorce
-NOT legally married; court finds it would be “unfair” to let one party take advantage of the situation

38
Q

What is the Last-in-Time marriage presumption?

A

When there are potentially multiple marriages in existence: the legal presumption is that the last-in-time marriage is the one that is valid
-The former spouse has the burden of proving that their marriage was still valid by showing no valid divorce was granted
-The law chooses to presume “morality & legitimacy”

39
Q

Describe Proof of Marriage

A

-Legal documents are the easiest type of proof

-There is also a legal presumption of marriage if the couple cohabitates & acts as though they are married
-Must show proof that there wasn’t a valid marriage

40
Q

For a marriage to be valid, what is needed? (in capacity & intent to marry section)

A

For a marriage to be valid, the parties must have the legal capacity & intent to marry
-If that is lacking, two possible situations:
1.) Void ab initio marriage: a legal nullity; the marriage is void and can never be ratified by the parties

2.) Voidable marriage: the marriage is considered valid for all purposes unless its annulled by either spouse

41
Q

WHat is Void ad initio marriage?

A

a legal nullity; the marriage is void and can never be ratified by the parties

42
Q

What is Voidable marriage?

A

the marriage is considered valid for all purposes unless its annulled by either spouse

43
Q

what is generally in Void ab Initio marriages?

A
  • Bigamy & Polygamy
  • Incestuous Marriage
44
Q

What is generally voidable in marriages?

A
  • Underage marriages
  • Mental incapacity
  • Physical incapacity
  • Fraudulent marriage
  • Marriage under duress
  • Sham marriage
  • Marriage in jest
45
Q

What happens in Bigamous and Polygamous marriages?

A

-Enoch Arden Statutes: establishes a time period (5-7 years) after which a spouse may remarry with a good faith belief that the absent spouse is dead.
-Does not mean the new marriage is valid
-Just prevents criminal prosecution for bigamy

-Arguments in favor of Polygamy:
-Justified when a wife is barren
-Prevents rape, prostitution and adultery
-Greater excess of women & orphans in times of war & disaster that need protection

46
Q

WHat are Enoch Arden Statutes?

A

-establishes a time period (5-7 years) after which a spouse may remarry with a good faith belief that the absent spouse is dead.
-Does not mean the new marriage is valid
-Just prevents criminal prosecution for bigamy

47
Q

What are incestuous marriages?

A

-Through bloodline or Legal affinity: relationship by marriage

-Approximately half of the states prohibit 1st cousin marriages

-The genetic or scientific reason for banning incest has come into question

48
Q

WHat are underage Marriages consisted of?

A

-Generally, permitted to marry at 18 years old or 16-17 with parental consent

-Most states have “exceptional circumstances” provisions that allows marriage when the female is pregnant despite not meeting the age requirement

-Courts are split on whether an underage spouse can annul his or her own marriage

49
Q

What is Mental Incapacity in Voidable marriages?

A

generally determine whether the person had mental capacity to consent at the time of marriage
-(ex: Brittany Spears in vegas)

50
Q

What is Physical Incapacity in Voidable marriages?

A
  • “incurable impotence”
  • Inability to consummate the marriage by sexual intercourse
51
Q

What is Marriage under Duress in Voidable Marriages?

A
  • consent of one party is obtained under duress
  • Subjective test of consent at the time of the marriage
52
Q

What are Sham marriages within Voidable marriages?

A
  • marriage for a limited purpose
  • Immigration Marriage Fraud Amendments Act of 1986 only gives 2-year conditional residency to aliens who marry US citizens
53
Q

What are marriages in Jest within Voidable Marriages?

A
  • marriage was meant to be a joke
  • Some states refuse to annul the marriage
54
Q

What Law governs a marriage?

A

-2 Major “conflict of laws” approaches:
- Lex Loci Contractus: the law of the state where the marriage was celebrated governs
- Restatement (2nd) of Conflicts: the law of the state which has the “most significant relationship” to the spouses & the marriage governs

55
Q

WHat is the Lexi Loci Contractus law?

A

the law of the state where the marriage was celebrated governs

56
Q

WHat is the Restatement of Conflicts law?

A

the law of the state which has the “most significant relationship” to the spouses & the marriage governs

57
Q

What is Annulment in marriage?

A

legal determination that a void or voidable marriage was a legal nullity from its inception
-A marriage never existed!

58
Q

What is Jurisdiction (within annulment of marriage section)?

A

majority view is that an annulment case can be heard in the state where either party is domiciled at time of annulment
- Can usually be done ex parte: one party

59
Q

what does ex parte stand for?

A

ex parte: one party

60
Q

Within Annulment, what are some important things?

A

For void ab initio marriages, you do NOT need a formal annulment proceeding
-Can still petition the court to have a judicial record that the marriage was void

For voidable marriages, you do need a formal annulment proceeding
- Failure to institute proceedings in a reasonable amount of time will result in a valid marriage
- Statute of Limitations defense possible

61
Q

What is Property & Support within Annulment?

A

-A majority of jurisdictions do NOT provide property rights or permanent spousal support in the case of annulment

-Some states have passed legislation to allow for support & marital property distribution similar to divorces for needy spouses

-Split of authority on how an annulled marriage effects the support obligations from a prior divorce
-Generally, you only need to pay support until you remarry. Courts disagree on whether an annulled marriage counts as “remarrying”

62
Q

Within Property and support rights during marriage, what are the 2 systems of Marital Property?

A

-Common Law System and
Community Property System

63
Q

What are some things to note about Property and support rights?

A
  • Traditionally, most statutes regulating property rights were gender-based
    - The Supreme Court struck down many of these laws in the 1970s as violating the Equal Protection Clause of the Constitution
    - Orr V. Orr. alimony is now available to both men & women
64
Q

What is within the Common Law system?

A

-The common law system exists in the majority of states today

-Traditionally, regarded a married couple as one legal entity, with the husband as the head of household

-Title Theory: during marriage, ownership of property goes to the spouse who holds title to, or has otherwise acquired, the asset in question
- Title to a marital asset is held by the party who earned the funds to purchase the asset

-Efforts to help married women retain some property rights under common law:
-Feme Sole Estates (1600-1700’s): an equitable trust of property created for the wife, usually by a male relative
-Married Women’s Property Act (1800’s):
granted wives the ability to own and transfer all types of real & personal property
- Right to enter into contracts, make a will, etc.
- Did not give any rights in the husband’s property

65
Q

WHat is title theory in Common law systems?

A

-During marriage, ownership of property goes to the spouse who holds title to, or has otherwise acquired, the asset in question
-Title to a marital asset is held by the party who earned the funds to purchase the asset

66
Q

What is Feme Sole Estates (1600-1700’s)?

A

-Feme Sole Estates (1600-1700’s): an equitable trust of property created for the wife, usually by a male relative

67
Q

What is the Married Women’s Property Act (1800’s)?

A

-Married Women’s Property Act (1800’s): granted wives the ability to own and transfer all types of real & personal property
- Right to enter into contracts, make a will, etc.
- Did not give any rights in the husband’s property

68
Q

What comes within Tenancy by the Entirety?

A

-a form of concurrent property ownership available exclusively to married couples

-Each spouse holds an equal, undivided interest in the property during the lifetime of the parties

-Shields the property from an individual spouse’s creditors or unilateral acts

-Survivorship interest giving sole ownership to the surviving spouse

-In some common law states; does not exist in community property states

69
Q

What do Common Law properties at death look like/ are?

A
  • Either spouse can leave their property via will to anyone they choose & leave widow with nothing
  • Dower: a widow was entitled to a life estate in ⅓ of certain real property her husband owned
  • Curtsey: The husband has a life estate in all of the wife’s qualified property once a child was born alive in the marriage.
  • Elective Share Statutes: entitles a surviving spouse to a statutorily prescribed minimum fraction of the other spouse’s property at death
    -**Dower and Curtsey abolished in most states, but not all.
70
Q

In Common Law Properties, what is a Dower?

A

a widow was entitled to a life estate in ⅓ of certain real property her husband owned

71
Q

In Common law properties, what is a Curtsey?

A

The husband has a life estate in all of the wife’s qualified property once a child was born alive in the marriage.

72
Q

In Common Law Properties, what is Elective Shares Statutes?

A

entitles a surviving spouse to a statutorily prescribed minimum fraction of the other spouse’s property at death

73
Q

Within the Community Property System, what consists of it?

A
  • Based on a “partnership” theory of marriage, which assume each spouse contributed equally to the accumulation of assets during marriage
  • Most property acquired during marriage is owned equally by both spouses as community property
  • Separate property includes assets acquired before marriage or individual gifts or inheritances during marriage.
    • At death, there are NO survivorship interests in community property
      • Spouse keeps their ½ interest and separate property
      • Deceased spouse ½ of the property is divided according to their will
      • Community property states do not recognize dower, curtsey or an elective share
74
Q

What is marriage as an “economic partnership”

A
  • New trend in the law to view marriage as an “economic partnership” between the couple
  • Even in common law states, distribution upon divorce often follows the community property idea of an “equitable distribution”
  • This does NOT change common law rules regarding property DURING marriage
    • Chapter 10 discusses this in more detail
75
Q

What did the Doctrine of Necessities allow?

A

allowed a wife to purchase necessary items and “charge” them to her husband’s credit
-Now extended to both spouses in some states
-Other states have abolished the doctrine entirely

76
Q

What are some other common lawsuits for support?

A

1.) Separate Maintenance: wife could sue for support during divorce/ annulment proceedings while still married
2.) Divorce from Bed & Board: decreed the parties would live separately, but remain legally married; legal separation

**If the wife was guilty of marital fault, she forfeited her right to support
**Today, must be made available to both spouses in states where they still exist

77
Q

What is some information on Rights and Obligation?

A
  • Most states have statutes that control spousal and child support obligations
  • Example: a pendente lite statute allows a spouse to petition for support during the course of divorce or annulment proceedings
    • Potential criminal penalty for failure to provide support if capable
      -Generally not as broad as civil remedies can require the family to be complete without means of support
  • At common law, the husband had a duty to support their wife & children
    -generally , courts rarely intervened in the details of that support

-Right of Consortium: the total tangible & intangible relationship between spouses
-If a 3rd party harms a spouse & causes injury, the other spouse can sue for loss of consortium in a civil suit

  • Relative Responsibility Statutes: statutes that require adult children to contribute to the support of a needy parent
    - Defense if the child was abandoned
78
Q

What is Separate Maintenance?

A

the wife could sue for support during divorce/ annulment proceedings while still married

79
Q

What is divorce from Bed & Board?

A

decreed the parties would live separately, but remain legally married; legal separation

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