Term
| Why we regulate the family/what goals are being pursued |
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Definition
- protection of vulnerable family members
- provides a framework for resolving disputes
- protects state from financial burden
- protect institution of marriage/family and strengthens it |
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Term
| means v. end in family law goals |
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Definition
- means = regulate who may marry (broader goal)
- ends = protect institution of marriage to strengthen family |
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Term
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Definition
- Issue: Does a state need to unequivocally honor the judgments of another state? No (NY resident sought divorce in VT based on physical abuse which NY didn't recognize), VT granted
- Holding: generally state must give full faith and credit to another state's judgment but if it is repugnant to policy it need not be enforced --> W was trying to evade force of local laws (fraud)
- differences b/c states and family law should reflect the values/morals of a certain jurisdiction (State's rules govern) |
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Term
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Definition
- H granted legislative divorce against W, H sold land, heirs claimed marriage was invalid and land belonged to them
- Legislature did have power to grant divorce, more than a mere K
"once formed, law steps in and holds the parties to various obligations and liabilities"
- parties enter into a new relationship/status whose rights/duties/obligations rest on state law - law not K
- discussion of foundation of great public institution |
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Term
| Heartbalm actions/breach of marriage promise |
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Definition
- breach of promise to marry: Wightman v. Coates - similar to tort as far as damages
- CL recognizes
- heartbalm actions = father gets money for seduction and daughter for breach of promise to marry |
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Term
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Definition
- felony of W, as party at fault, from marrying w/in set time of divorce
- Legislature can provide regulations for sake of morality and decency / public concern
-"no institution has a more direct influence or a more important relation in life than marriage" |
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Term
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Definition
cause of action available only to H at CL, intended to shield H from having to support illegit kids. Later extended to W.
- requires proof of D's adulterous relations with P's spouse
- Damages: humiliation, loss of reputation, loss of consortium |
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Term
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Definition
-suit against 3rd party for interference with marital relationship (negligent and intentional acts)
- CL: W did not have cause of action, most jurisdictions now recognize W has cause |
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Term
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Definition
- must prove valid marriage
- D's wrongful conduct with spouse
- loss of consortium and causation
- in awarding damages, court considers duration and quality of husband's relationship
- Punitive damages possible if D's conduct was malicious and D had ability to pay |
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Term
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Definition
- agreement in praesenti
- made by competent parties (capacity)
- Cohabitation (no particular time length)
- presenting oneself as being married
- gaining reputation as married |
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Term
| CL will be recognized in another state unless... |
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Definition
neighboring state's law would be repugnant to public policy
ex: Stein v. Stein - such a quick visit, on vacation, marriages could be recognized for just driving through |
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Term
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Definition
- if something is lawful in state A it will be recognized in state B
- public policy exception - very narrow |
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Term
| substantive restrictions on right to marriage |
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Definition
- apply to ANY marriage
- GRAB (gender, relationships by blood or marriage, age, bigamy/pre-existing marriage) |
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Term
| State regulation of creation of marriage |
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Definition
- formal marriage
- informal - non-ceremonial or CL recognized by some states
- SAME obligations created |
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Term
| procedural requirements for marriage (GENERAL, NOT MD) |
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Definition
- applies only for formal marriages
- license: look to see if has capacity
- ceremony - who may conduct, etc.
- medical testing
- counseling
- waiting period |
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Term
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Definition
void = society deems it important to prevent b/c they violate deeply held core values (incest, bigamy, same sex)
voidable = less offensive to society, decision to void rests with the partner with the disability |
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Term
| if statute is silent on whether something other than bigamy, incest, or same sex marriage is void or voidable then... |
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Definition
State v. Lowell - H married W underage by state statute (ok by CL - 14 for M, 12 for F). Father took her away.
- Marriage was voidable b/c statute doesn't say it will be void - favors marriage
- marriage emancipates child, changes status |
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Term
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Definition
if underage person marries w/o judicial or parental approval and otherwise could if they had it, parents can annul or allow marriage to stand
- may waive right if knew of it and did nothing |
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Term
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Definition
| - can occur by express parental consent, implied, change of child's status (military or marriage) |
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Term
| Statutory gender differences |
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Definition
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Term
| constitutional challenges to age barriers |
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Definition
- doesn't completely end right but rather delays marriage
- Imp state interest |
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Term
| Noncompliance with formal statutory requirements |
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Definition
- majority says only substantial compliance is necessary: parties must have reasonable expectation that marriage is valid
- Carabetta: H/W never got marriage license, married in church, W filed for divorce. Court held policy is against voiding a marriage that is entered into with the reasonable belief that it is valid/procedural elements were met. in absence of express language saying void, imperfect marriage is dissoluble not void |
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Term
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Definition
Carabetta - in regards to procedural requirements there is some leeway
- must show good faith belief and have capacity
IF statute is silent |
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Term
| medical test before marriage |
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Definition
In re kilpatrick and kitson: argued violated free exercise clause for disease testing (first amendment)
- State can require medical test: health of state's population was compelling, test was minimally intrusive and effective |
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Term
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Definition
related by blood within certain degrees of kinship = void
- generally do not distinguish b/t full and half blood
- 1st cousin is up in the air |
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Term
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Definition
- refers to relationship that exists b/t two people of the marriage of one of htem to a blood relative of the ohter
- today most likely used to prohibit a stepparent relationship |
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Term
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Definition
- most bar marriage b/t persons whose only relationship is by adoption
- will undermine fabric of family |
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Term
| presumption of most recent marriage |
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Definition
- when two parties claim to have married the same spouse, law generally presumes most recent is valid
- party asserting invalidity of the 2nd has burden of rebutting presumption by conclusive evidence
- presumption continues until proof it was ended by death or divorce |
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Term
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Definition
| - rare, if one person could not be present |
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Term
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Definition
- marriage that couples pledge to marry after serious deliberation, counseling, and agreement of marriage counseling if either requests
- can only break up if adultery, abuse, imprisonment by felony or abandonment |
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Term
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Definition
| prisoners can get married |
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Term
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Definition
- marriage which is in fact void or voidable but b/c of good fatih by at least one of them, party is entitled to equitable relief.
- Good faith belief in valid marriage
- ignorant of defect
- what's used when party enters into marriage w/o capacity |
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Term
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Definition
| - applies to spouse who remarries w/o getting divorce b/c good faith belief that spouse is dead |
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Term
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Definition
| most states apply the lex loci rule to govern what place governs the marriage validity |
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Term
| If substantive not met... |
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Definition
- marriage is void or voidable
- void = no legal action needed
- voidable - must bring action for annulment while both parties to marriage are living |
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Term
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Definition
- w/in 3 degrees of consanguinity
- MISDEMEANOR |
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Term
| In MD, 16 or 17 year old may not marry unless |
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Definition
- has consent of a parent or guardian nad parent swears individual is at least 16 OR
- no consent, either party gives clerk medical documentation stating that she's pregnant |
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Term
| in MD, 15 year old may not marry unless |
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Definition
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Term
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Definition
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Term
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Definition
- does not apply is spouse has been absent from person for continuous period of 7 years AND
- does not know whether previous lawful spouse is living at time of subsequent marriage ceremony
- FELONY and imprisonment |
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Term
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Definition
- May not marry w/o license issued by the clerk for the county in which marriage is performed
- whoever performs is guilty of misdemeanor and fine |
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Term
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Definition
| VOID - valid marriage is b/t man and woman |
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Term
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Definition
reynolds v. reynolds - P had been preggo prior to marriage, D wanted to annul alleging wife had induced D to marry by false and fraudulent representations that P was chaste
- Holding: concealment went directly to the essentials of the marriage K and operated as a fraudulent misrepresentation |
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Term
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Definition
| - not sufficient to obtain an annulment |
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Term
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Definition
- witten v. witten: she changed her mind about it
- holding: sufficient fraudulent misrepresentation |
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Term
| statutory basis for annulment |
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Definition
- spears v. alexander: when two people get married in jest, exuberance, dare, or with no intention to be bound thereby, most states allow annulment
-no meeting of the minds - a way to annul a K can annul a marriage (draws on K law w/ consent)
- wasn't in an informed position which undermines consent
- there is a duty to investigate |
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Term
| disappearing spouse statute |
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Definition
| - no presumption of death with desertion, must have proceeding to establish |
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Term
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Definition
| - must be material misrepresentation |
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Term
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Definition
| - usually either party and maybe 3rd party may bring - if still cohabitating most courts will rejct |
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Term
| Making a previously void/voidable marriage lawful |
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Definition
| - if defect is cured by some event than marriage is valid b/c impediment has been removed |
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Term
| Constitutional rights and religious practices |
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Definition
- Reynolds v .US: mormon - violation of 1st amendment right to exercise religion
Holding: laws cannot be made to interfere iwht religious beliefs and opinions but they may with practices |
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Term
| Marriage as a fundamental right: Loving v. VA |
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Definition
interracial marriage against state criminal statute. State would not give FFC of marriage consecrated in DC
- EP (level of scrutiny depends on class affected) - racial = suspect, rigid scrutiny. Must be shown to be necessary to the accomplishment of some permissible state objective
- DP (interference with fundamental right to marry) - subversive to 14th amendment
FIRST TIME marriage is classified as fundamental right --> DP show statute or law furthers legitimate state interest and is necessary for it |
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Term
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Definition
- statute required noncustodial parents who is under obligation of child support to acquire court order granting permission to marry
- Violated EP, substantially and directly interfered with fundamental right w/o being closely tailored to effectuate state's intersts
BUT reasonable regulations that do not significantly interfer may be imposed (here there were other ways to ensure payment) |
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Term
| test after Loving/Zablocki |
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Definition
- Does it interfere with fundamental right to marry
- If so, is it direct/substantial interference?
- if so, substantial/compelling state interests?
and is statute narrowly tailored to meet those interests |
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Term
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Definition
- P appealed upholding of state law which made it crime for two persons of the same sex to engage in certain intimate conduct
holding: right to privacy and liberty DP grounds. Conduct was private and consensual.
- FEDERAL CONCERN - right of privacy |
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Term
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Definition
- same sex couples were denied marriage licenses from town clerks
- VT's constitution makes it mandatory that same sex couples are entitled to the same benefits and protections |
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Term
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Definition
- denial of marriage license
- step further and demands right to marry under constitution
- No reason not to |
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Term
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Definition
- state do not need to give FFC to same sex marriages
- in regards to federal benefits, same sex will not be acknowledged |
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Term
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Definition
| - has equal rights amendment in addition to EP clause but still not valid same sex marriage |
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Term
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Definition
| legal declaration that marriage is void, never occurred |
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Term
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Definition
- judicial remedy
- adversarial proceedings
- reserved for innocent spouse against guilty |
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Term
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Definition
unilateral divorce - right to an immediate divorce (adultery, constructive and actual desertion)
- no waiting period
- there are affirmative defenses |
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Term
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Definition
- disposition on part of D
- opportunity to commit |
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Term
| actual desertion v. constructive |
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Definition
actual: physical seperation, w/o consent and against will of other party, w/o justification
constructive: physical seperation, b/c of conduct of other spouse, preserve health/safety/respect |
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Term
| under no fault, affirmative defenses are |
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Definition
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Term
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Definition
| - petitioning party must enter court w/o serious fault - related in one way or another to party's fault |
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Term
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Definition
| - defending party shows that petitioning party is guilty of an offense that would ordinarily grant D a divorce |
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Term
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Definition
| - express or implied forgiveness of marital misconduct |
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Term
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Definition
- agreement b/t parties to create a false-fact situation upon which a divorce would be granted
- Vandervort - sham marriage for medical benefits |
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Term
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Definition
| - defense to adultery actions that consent was given by one party for adulterous act of other |
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Term
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Definition
| - cruel and human treatment was bc of insanity then it fails as a ground |
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Term
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Definition
| - unilateral divorce with long waiting period (1 year) |
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Term
| Recognizing foreign divorce decrees |
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Definition
| - divorce obtained in another jurisdiction shall be of no force or effect in this state if both parties to the marriage were domiciled in state at the time proceeding for divorce commenced |
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Term
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Definition
- cannot impose beliefs on another, emotional cruelty
- some states require physical element |
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Term
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Definition
- waiting period prior to being filed
- marital discord
(testimony can be enough) |
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Term
| MD limited divorce - fault |
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Definition
- does not terminate marriage or property claims, still allows for spousal support
- fault: cruelty/excessively vicious conduct (any conduct which is calculated to serious impair...conduct that endangers or creates a reasonable apprehension will endanger
- desertion (actual and constructive) |
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Term
| MD divorce limited no fault |
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Definition
| voluntary seperation - live apart with no cohabitation & no reasonable expectation of reconcilation |
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Term
| MD absolute divorce - fault |
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Definition
permanent, allows remarriage, terminates property claims
- adultery
- cruelty/excessively vicious conduct (towards spouse or child)
- desertion (continued for 12 mo, deliberate and final, no reconciliation)
- conviction of crime (sentenced to 3 yrs and served 12 mo & no recon) |
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Term
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Definition
- insanity
- voluntary seperation
- unilateral 2 year straight seperation |
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Term
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Definition
- notice and minimum requirements, CAN BE WAIVED
- power of court over party
requirements = notice, hearing, minimum contacts in most case |
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Term
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Definition
- power court has to hear part type of case
- may not confer SMJ on courts or waive it
- Fed source - constitution/acts of Congress
- State = state statutes and constitution |
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Term
| Sources of fed jurisdiction |
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Definition
- federal questions
- diversity and amt in controversy |
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Term
| Domestic relations in Federal Court |
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Definition
Ankenbrandt - P brought suit against D alleging child abuse
- Domestic relations exceptions only divests federal courts power to issue divorce, alimony, and child custody decrees
- fed court can go over torts
- fed can also enforce the preceding actions |
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Term
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Definition
- Used when D has been temporarily within state boundaries but is not outside the state
- DP requirements (Int'l Shoe_
- sufficient minimum contacts & assertion of jurisdiction fair?
ex: Jones v. Chandler - never married but P brought action for child support
holding: minimum where person transacts business, K for goods/services, causes tortuous injury within state |
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Term
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Definition
| court may exercise personal jurisdiction over a non-resident for any civil proceeding arising out of marital relationship, if P resides in MD, and D was personally served and 1) MD was place of domicile prior to separation or 2) any legal obligation relating to marriage arose under laws of MD. |
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Term
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Definition
| Court may exercise over non-resident D if 1) mother resides in state 2) D was properly served 3) the act of conception is alleged to occur in MD |
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Term
| DP barriers to jurisdiction |
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Definition
- Kulko: kid in CA, did not purposefully avail oneself of the benefits and protection of the law
- action was domestic in nature, no commercial/financial benefit from child's presence in CA |
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Term
| Custody - May v. ANderson |
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Definition
- custody decree by one court issued w/ NO PJ over nonresident parent
- NO, cannot deprive mother of rights, mother neither domiciled, resident, nor present |
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Term
| status theory in custody modification |
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Definition
- McAtee: viewed as a status classification - court may adjudicate custody under state law w/o PJ over absent parent (had actual notice)
- exception to minimum contacts requirement |
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Term
| Status theory expansion... |
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Definition
- protective orders, child custody, divorce
- bartsch v. bartsch: marriage dissolution actions do not require PJ, can alter the status |
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Term
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Definition
| - court doesn't want to interfere with family gov't structure |
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Term
| Civil protections for domestic violence |
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Definition
- civil protection orders: emergency orders available in every state
- divorce: absolute (cruelty) Ground
- child custody/visitation: abuse of mother or children factor |
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Term
| Criminal protection - violence |
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Definition
- domestic violence crimes/defenses (BWS)
- marital rape |
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Term
| DP rights of alleged perpetrators who challenge provisions in domestic abuse act...(TEST) |
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Definition
- Ex rel williams v. March: TEST
1. private interest affected (property & liberty in custody of kids)
2. gov't interest (general health, safety and welfare)
3. fairness and reliability of existing procedures, value of additional ones |
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Term
| In determining whether protective orders should be issued... |
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Definition
Robinson v. Robinson, issued on case by case - must consider all facts
- violators may be held in contempt |
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Term
| Stages for domestic violence remedy |
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Definition
1. limited relief, shorter duration, ex parte (no hearing or notice)
2. 2nd |
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Term
| Analysis of domestic abuse remedies |
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Definition
- PEFR?
- has abuse occurred? (actual/fear of serious bodily harm: objective individualized) |
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Term
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Definition
| - where D resides, carries on regular business, is employed, habitually engages in a vocation |
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Term
| MD divorce residence requirement |
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Definition
| - if grounds occurred outside the state, may not apply unless 1 of parties has resided in MD for at least year before application is filed |
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Term
| MD grounds for limited divorce |
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Definition
- cruelty of spouse or child
- excessively vicious conduct
- desertion
- voluntary separation if parties live apart and no reconciliation hope |
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Term
| MD courts - reconciliation |
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Definition
| - as condition for limited divorce, court may require good faith efforts in reconc. and assess costs for that |
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Term
| MD court absolute divorce grounds |
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Definition
- adultery
- desertion (12 months w/o interruption before filing, deliberat/final, no reconc.)
- felony (3 year sentence and 12 months served)
- 12 month seperation
- insanity if in hospital for at least 3 years before filing, other stuff...
-cruelty
- excessively vicious |
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Term
| MD protective orders as evidence |
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Definition
| - inadmissible for divorces, compliance isn't grounds for divorce |
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Term
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Definition
PROHIBITED
- misdemeanor and fine |
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Term
| MD PJ for divorce, annulment, custody |
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Definition
-D = where P resides
- A= where P resides or marriage was performed
- C = where father, alleged father, or mother of the child resides, or where child resides |
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Term
| MD- petition for relief from abuse |
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Definition
| - file with court, or commissioner, under oath, information (like abuse incidents, etc.) |
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Term
| MD interim protective orders |
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Definition
- commission/clerk
- commissioner finds reasonable grounds that eligible for relief
- protective order may order refrain from further abuse, contacting, entering property
- if living together, vacate home immediately, custody, temporary use and possession of home for nonspouse
- stay away from work/temporary residence, pets
- hearing/notice |
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Term
| MD temporary protective orders |
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Definition
- once hearing on a petition, ex parte or otherwise, judge finds there are reasonable grounds to believe a person is eligible may issues
- same things as interim (also firearms surrender)
- effective not more than 7 days after service of order, not to exceed 6 months |
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Term
| MD failure to comply with interim protective order |
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Definition
- fine/imprisonment not exceeding 90 days
- 2nd offense - fine/imprisonment (not more than 1 year) |
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Term
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Definition
- SBH
- imminent SBH
- ANY assault |
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Term
| MD emergency family maintenance |
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Definition
| - monetary award given to or for a person eligible for relief to whom the respondent has a duty of support based on financial needs, resources |
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Term
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Definition
| - sexual relationship and resided for period of at least 90 days within 1 year before filing |
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Term
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Definition
- principle residence
- owned, rented, or leased OR other stuff for child abuse |
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Term
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Definition
- current/former spouse
- cohabitant
- related to respondent by blood, marriage or adoption
- parent/child/stepchild who resided for at least 90 days within 1 year
- person with child in common |
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Term
| MD final protective orders |
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Definition
- temporary protective order NOTICE
- clear and convincing evidence that alleged abuse has occurred
- CANNOT exceed more than 1 year, except
- if it's a 2nd order |
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Term
| MD modification of protective orders |
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Definition
- notice/hearing
- good cause to extend or modify |
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Term
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Definition
- crim prosecution/imprisonment : ALL orders
- contempt - temp and final |
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Term
| D/c v. Circuit v. Special appeals |
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Definition
D/c = protective orders
Circuit = general
Special = custody |
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