A. INTRODUCTION: PUBLIC v. PRIVATE DIMENSIONS OF COURTSHIP & MARRIAGE. 1. COURTSHIP PATTERNS.

. o Laws governing individuals decision to marry, emphasizing both private nature of the decision and the States regulatory authority Personal interests? States interests? Constl limits on States regulation? o States may impose reasonable regulations that do not significantly interfere w/ the decision to marry, but, a marriage restriction is unconstl unless it is closely tailored to promote the States interests. 2. MARRIAGE CONRACTS. o Is marriage a contract (private agreement btwn 2 parties)? Status (public institution regulated by State)? o [Maynard v. Hill]: marriage is more than a contract; diff. features, has social & human factors included. B. PREPARING TO MARRY: PREMARITAL CONTROVERSIES. 1. BREACH OF PROMISE TO MARRY. o Majority View: only few juris. recognize claims for breach of promise to marry. most have abolished this; if not, allow, but often w/ limitations. o Damages: mix of tort and contract law P may recover the monetary & social value of the marriage (as expectation dmgs) + maybe IIED. o Defenses: physical/mental defects, Ps lack of chastity or love for D; mutual decision to end. o Note: alienation of affection claims mostly abolished (MA law). 2. GIFTS GIVEN IN CONTEMPLATION OF MARRIAGE. o Heart Balm Statutes: o Return gifts given in contemplation of/conditioned on marriage (note: treated distinctly from breach). o Conditional Gift Theory: gifts conditioned on the performance of marriage; if condition (marriage) is not met, then the transfer is not completed and the gift (engagement ring) is recoverable. o NOTE: other possible theories: fraud and unjust enrichment. o Was the gift/ring was conditioned on the subsequent marriage, or was an absolute gift? Factors: nature of gift, surrounding circumstances, and cause of broken engagement. o Fault: at C/L, fault barred recovery or retention of engagement ring. Today, modernization + divorce laws make fault irrelevant. C.

PREMARITAL CONTRACTS.

Pre-marital/ante-nuptial/pre-nuptial agreements: generally limit spousal property rights in the event of the dissolution of the marriage and/or death of one spouse. o Increased popularity b/c of high divorce rates, re-marriages, co-habitation & delayed marriage ages. o Modern View: trend is for courts to find such agreements as favorable. most States will enforce a pre-nup that waives spousal support. Combine contract principles re: private ordering w/ family law principles of equitable distribution. Premarital Contracts v. Ordinary Contracts: Subject Matter: typically involve 1 or combo of the following 3 things: Property and support rights during and after marriage, Personal rights and obligations of spouses during marriage, Education, care, and rearing of children NOTE: State interest in protecting welfare of couple & their kids; preserve privacy of family. Parties Relationship: confidential relationship; usually involves unequal bargaining power. Agreements re: acts to be performed in the future. D. SUBSTANTIVE & PROCEDURAL REGULATIONS. 1 CONSTL LIMITS ON STATE REGULATIONS. o [Loving v. Virginia] VA law prohibiting marriage between blacks and whites; Anti-Miscegenation laws. Law struck down as unconstl, violation of 14th Am. HELD: marriage is a fundamental right for all, cannot classify or discriminate based on race. o [Zablocki v. Redhail] WI law prohibiting marriage unless up to date on child support payments. Held: the right to marry is a fundamental interest; cannot create classes of people. Regs that substantially & directly interfere w/ the freedom to marry must receive higher scrutiny. o COMMON LAW Rule- place of celebration; if marriage is valid @loc, then= valid everywhere. + Consider: Full Faith and Credit Clause; related to concept of Lex Loci. D. SUBSTANTIVE & PROCEDURAL REGULATIONS.

2. STATE REGULATIONS OF ENTRY INTO MARRIAGE. a. SUBSTANTIVE RESTRICTIONS. o 1. CAPACITY TO MARRY. a) SAME SEX. [Perry v. Brown] DOMA and Prop 8 case; Only marriage between a man and woman is valid or recognized in CA. Domestic Partnerships were offered to same and opposite sex coupled; provides all other benefits that a marriage would provide, except for the official recognition and social status. Law struck down, but, Prop 8 reversed CA law permitting same-sex marriages. [Windsor v. US]: Sup. Ct. struck down 3 DOMA (marriage is btwn 1 man + 1 woman). RSTMT 283: Validity of Marriage. b) INCEST. [In re: Adoption of M] o Issue: prohibition of marriage of persons related by adoption (NJ law). o Because of Ps status as daughter, adoptive father is unable to marry her; Law permits exceptions only in exceptional circumstances. o Held: exceptional circums; original adoption of P is vacated w/ respect to the adoptive father; b/c mom & dad divorced + dad & daughter have child together. Note: even if State treats 1st-cousin marriages as void when performed w/in that State, it may still be recognized if validly performed in another State (one that recognizes it). NOTE: Void v. Voidable Marriages: o Void: marriage is invalid from its inception (void ab initio); meaning, it never had any legal existence. Either spouse, or a 3-pty may challenge marriages validity, at any time, in any proceeding. o Voidable: marriage is valid until it is subsequently declared invalid. Invalidity can only be asserted by a spouse/ a party to the marriage, and may only occur during the marriage (not after death of other party/spouse). Cannot be collaterally attacked/ in a related proceeding. If later ratified (curing the defect), then no longer voidable; parties must seek divorce. o Ecclesiastical Laws: some particular defect in the marriage which offends public policy Substantive Defects: same-sex, bigamous, incestuous = void. Less Serious Substantive Defects: age = voidable. Note: Non-consummation may be grounds for an annulment; it is not allowed if the parties knew ahead of time that the marriage could not be consummated. o Civil & Crim. Consequences: all States specify the degree of consanguinity & affinity to which persons may not marry. Consanguinity: blood relations. Affinity: relations by marriage. Marriage to parent, grandparent, brother, or sister = universally prohibited. Marriage between aunt/nephew or uncle/niece = universally prohibited. Some States extend prohibition to marriages between parents and adopted children. Many States permit first-cousins to marry. Most incestuous marriages = void -and- = crime; (void ab initio/ at its inception). Incest laws apply to both consensual & non-consensual acts of sex or marriage. Punishable if knowingly issue license to couple whose marriage is presumptively void. Some states permit an adult to adopt spouse as their issue for inheritance purposes. c) BIGAMY. Some states allow innocent spouse in a bigamous marriage to be treated as if the marriage was valid, in hopes of receiving spousal support. Some states prohibit the guilty spouse from asserting bigamy as a way of avoiding having to pay support or to split the marital assets. d) AGE. Most States impose age restrict of 18+ to marry, w/o parental or judicial consent. If minor, consent may be needed; unless, pregnant, some states not req. consent then.

2. STATE OF MIND RESTRICTIONS. a) FRAUD & DURESS. Drunk as incompetent to consent to marry: must be so drunk as to not know what party was doing/ unaware of nature of transaction (+ be careful for ratification). Duress: sign pre-nup right before wedding NOT duress; fraud only if misrep/hidden. Fraud must go to the essence of the marriage. Party may not challenge validity of marriage upon grounds of express or implied representations of the other w/ respect to: character, habits, chastity, business or social standing, -and/or- financial worth or prospects. B. PROCEDURAL RESTRICTIONS. o 1. LICENSURE & SOLEMNIZATION. License: Depending on juris., 1 or both parties/applicants must go obtain license, Short waiting period imposed after obtaining license and before marriage ceremony. Solemnization: by judge, clergy, public official, etc. C. INFORMAL MARRIAGES. o 1. COMMON LAW MARRIAGE. Ver conservative doctrine (Jennings v Hurt) For States that recognize C/L marriages; elements to be proven are: 1) competence/ capacity; 2) agreement to enter into a marital-type relationship; 3) a holding out as a married couple; 4) gaining reputation/ viewed by others as being married; -and 5) cohabitation. o

CH. 3: BEING MARRIED: REGULATING THE INTACT MARRIAGE B. ROLES AND RESPONSIBILITIES IN MARRIAGE. 1. MARITAL PROPERTY SYSTEMS. o a) Separate Property (C/L): *majority Property that each H & W own/bring into the marriage is owned separately. If prop is acquired during marriage, owned by who acquired it (inheritance) unless deed/title says otherwise: buying car w/ marital funds = marital asset o b) Community Property: *minority- 9 States. H & W own some prop jointly. Theory: recognize equality and spouses as partners. Recognizes each spouses contributions + separate prop. brought into the marriage. Note: lottery winnings could = marital prop; education degrees considered in calculations. o c) Title Theory: determines ownership & management in Separate Prop States during intact marriages. o d) Equitable Distribution: attempts to divide marital prop. in fair/equitable manner; variety of factors. at divorce, most Sep. Prop. states follow this approach (MA law). 2. DUTY OF SUPPORT o Doctrines of Support and Non-Intervention: During an intact marriage, court not likely to take claims re: spousal responsibility. Duty to support dependents and Duty to provide necessaries. 4. FAMILY NAMES. o NO fundamental right in choosing a childs last name (surname). 5. PARENTING. o a. PREGNANCY LAWS (+ breastfeeding). o b. BALANCING WORK & FAMILY (Family and Medical Leave Act (FMLA)). C. TORT AND CRIMINAL LAW: DOMESTIC VIOLENCE. 1. BATTERED WOMAN SYNDROME. o BWS is useful for domestic violence victims putting forth self-defense claims. o Syndrome typically explains why a battered woman does not leave marriage, why she feels in imminent danger, and her use of excessive force. CH. 4: ALTERNATIVE FAMILIES A. COHABITATION: UNMARRIED COUPLES. 1. UNMARRIED COUPLES RIGHTS INTER SE. o RULE: Majority*: permits recovery; recognition of prop rights, based on express & implied agrmts + equitable remedies for cohabitants. [Marvin]. B. PARENTS AND CHILDRENS RIGHTS IN THE NON-MARITAL FAMILY. 1. SUPPORT RIGHTS OF NON-MARITAL CHILDREN. o Single Parent Families; [Clark]: trend of increasing constl protection of non-marital childs rights. o Both parents, regardless of marital status, are required to support the child. o No distinction or differences w/ respect to marital, adopted, or non-marital child; all same rights & duties. 2. LIMITATIONS ON UNMARRIED PARENTS RIGHTS. o Unwed father; Challenging & Establishing Paternity if paternity proven, then child support obligs. arise. o Defining family; Defining father. o 3 Factors making an Unwed Man a Father: 1) biological relation to child; 2) social relation to child; 3) relationship w/ the childs mother. the need for the creation of a family or familial relationship.

CH. 5: DIVORCE A. FAULT-BASED DIVORCE. 1. ADULTERY. 2. CRUELTY. o -aka- Indignities or Cruel & Inhumane Treatment. o Most States recognize as grounds for divorce. o Requires: course of conduct of cruel behavior that creates an adverse health effect. usually physical, but some states allow mental, as well. 3. DESERTION. o Requires: cessation of cohabitation; w/o cause or consent; w/ the intent to abandon and not resume; for the statutory duration- usually 1+ year; (+ some require voluntary; + mere departure not enough). Constructive Desertion: intolerable conduct of 1 spouse, effectively forcing/compel other to leave. B. FAULT-BASED DEFENSES. Recrimination: o If P/ spouse was guilty of an offense, then court will not grant a divorce. (unclean hands). Condonation: o Represents forgiveness, usually conditional, based on the promise by other spouse not to repeat offense or commit another. o Spouse that has once condoned an act, cannot later use that as grounds for divorce. o Do not have sex w/ spouse (probably cannot even cohabitate) after the marital offense, if want divorce. Connivance: express or implied consent, by P/spouse to the misconduct/ marital offense alleged. o Theory: if you consent to it, then cannot complain about it/ has no injury. Collusion: 2 parties, H & W, agree to perform, or pretend to have performed, (or suppress evidence of valid defense) an act that is grounds for divorce. o collaboration, both spouses in on it, is key; collusion can occur w/o actual commission of marital offense. Insanity: can be grounds for divorce, and a defense. C. NO-FAULT DIVORCE. (SEE CLASS NOTES). New Grounds for Divorce: the irretrievable breakdown of the marriage. (irreconcilable differences). All juris. form of No-Fault Divorce (if kept fault laws, prob. for sole purpose of spousal support awards). D. JURISDICTION: OVER THE PARTIES. Bi-Lateral Divorce: when forum has personal juris. over both parties; F, F & C forbid a collateral attack. Parties must be provided w/ notice, and the oppo to be heard, to comply w/ DP reqs. Ex-Parte Divorce: if a spouse cannot be found, or refuses to respond after receiving proper notice, a court may grant an ex parte divorce subject to F, F, & C. o But, granting court must have proper jurisdiction. at least 1 spouse must be domiciled in that State. However, this does not forbid a jurisdictional challenge brought in another State (burden on D). o Scope: cannot adjudicate the absent spouses right to support; cannot effect orders of other spouses domicile State; cannot impose child support obligations (needs separate action in ct. w/ juris over D).

CH. 6: FINANCIAL CONSEQUENCES OF DISSOLUTION A. PROPERTY DISTRIBUTION. B. SPOUSAL SUPPORT. Types of Alimony: 1) Permanent; 2) Rehabilitative; 3) Limited Duration; 4) Reimbursement. o For Permanent Support, consider: 1) age of parties (not children); 2) earning ability; 3) length of marriage; 4) standard of living grew accustomed to during the marriage. C. CHILD SUPPORT. 1. FROM DISCRETION TO GUIDELINES. o Mandated guidelines in each State to have a formula for calculating child support award amounts. o Determine what is income? Derived from any source; considered as available income (think, tax). o 2 Main Models: 1) Income-Shares Model; -and- 2) Percentage-of-Income Model: o Medical Support/ Health Insurance; Child Care Costs; 2. POST-MAJORITY SUPPORT. 3. MODIFICATION. o Must have a substantial change in circumstances in order to modify the support award. o Consider: Cost of Living Adjustments; Employment changes, Duration: until age of majority, o If non-custodial parents standard of living improves after the divorce, the amount of child support can be increased. (theory that the child has right to be maintained based on the parents societal situation; + over time, amounts may become inadequate). D. ENFORCEMENT. o 1. NON-SUPPORT. Contempt of Court: failing to comply with court order to pay support. Civil Contempt: seeks to coerce compliance. Criminal Contempt: punishing person for past misconduct/non-payment. o 3. CHALLENGE: JURISDICTION & ENFORCEMENT. E. SEPARATION AGREEMENTS. o Separation agreements are capable of resolving post-dissolution issues. o Legal separation requires: 1) parting ways w/ no intent to resume marital relationship; -and- 2) conduct evidencing a complete and total break down of the relationship. CH. 7: CHILD CUSTODY: PARENTAL DISPUTES A. STANDARD FOR SELECTING THE CUSTODIAL PARENT. Legal v. Custodial (Physical); Sole v. Joint Custody. 1. PRESUMPTIONS. o a) TENDER-YEARS PRESUMPTION. o b) PRIMARY CARETAKER PRESUMPTION. 2. BEST INTEREST OF THE CHILD. o *Majority: custody will be awarded based on the best interest of the child. o a) RACE & RELIGION: may be 1 factor, but NOT the sole or determinative factor in awarding custody. o b) FITNESS: is the parent fit? Is the home suitable? 3. JOINT CUSTODY: B. NON-CUSTODIAL PARENT: VISITATION. If person is the non-custodial parent, they are entitled to reasonable visitation. C. ROLES OF SPECIAL PARTICIPANTS. 1. CHILDS PREFERENCE: will be monitored; age + maturity level + reasoning are considered. 2. REPRESENTATION FOR CHILD. Guardian Ad Litem; Advocate. (sometimes) D. MODIFICATION. Disfavored, high burden of proof; original agreement is presumed to be in best interest of child.

STANDARD: Substantial Change in Circumstances.

E. JURISDICTION & ENFORCEMENT. CH. 8: PARENTAGE: FORMATION, CONSEQUENCES, & LIMITS OF THE PARENT-CHILD RELATIONSHIP. A. IDENTIFYING WHO IS A PARENT. 1. MEANS OF CONCEPTION. o Sexual v. Alternative Insemination; Posthumous Conception. 2. PARENTAGE BY ADOPTION. 3. PARENTAGE BASED ON FORMALITIES, FUNCTIONS, & INTENT. o Uniform Parentage Act (UPA) o Voluntary Acknowledgement of the Child o Presumption of Paternity. o S/L for Bringing Paternity Suits. o Equitable Parent Doctrine B. CONSEQUENCES OF PARENTAGE: RIGHTS & OBLIGATIONS. 1. PARENTAL OBLIGATIONS. C. LIMITS 1. 2. 3. 4. ON PARENTAL RIGHTS & DUTIES. AVOIDING PARENTAGE. TERMINATION OF PARENTAL RIGHTS. SHARED RIGHTS & RESPONSIBILITIES: COMMNUNITY PARENTING. EMANCIPATION.