Fl

common law age restrictions in general

12 for girls 14 for boys

Constitution can influence defintion of family - more than rational basis

Moore: something more than rational basis is applying - ordinance that limits occupancy of a dwelling unit to members of a single family is unconstituional because although the means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding undue financial burden on the school system are legitimate goals, the ordinance doesn't serve those goals; close relative who lost his mom could stay in the house

mutual assent to marry - capacity

OR: sufficient understanding of rights and duties of marriage, including nature, effects, and consequences of marriage drugs and alcohol Uniform Marriage and Divorce Act: can be grounds for annulment - incapacitated by substances questions to ask if people want to know if they were truly married: whether they wanted to be married, whether they were voluntarily incapacitated, what actions they did afterwards, like living together or parting ways

limits on who can marry the couple in OR

ORS is liberal with who can solemnize - marriage is OK if the parties to the marriage believed in good faith that the marriage was lawfully solemnized

second half of state approach to marriage validity

Restatement 2nd the validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage more flexible don't automatically apply the law of the state where the marriage ceremony was held courts tend to favor validation of long-term marriages

reasons why recognition of parent-partner status is a good idea

children could benefit from the cooperative structure high number of unplanned births - a new social status could influence better reproductive behavior by making them think about who would make a good parent-partner creates a duty to act/imposes legal responsibilities when a child is involved family status ascriptive (don't get to choose whether to opt in) private rights and obligations between parent-partners - doesn't affect government must be a consensual relationships - no obligations for rape from survivor

common law marriage implications

common law marriage = marriage - only the formalities differ no common law divorce - go through normal divorce process

In re Marriage of Winegard

common law marriage exists if the evidence shows consistent cohabitation, a holding out as husband and wife, commingling of financial resources, and acquiescence to one surname man placed ring on woman's finger after he called off a Vegas wedding and said they were as good as married; the couple proceeded to get wedding gifts, attend events as spouses, and cohabitated = common law marriage despite man saying he didn't have intent to marry

implied agreement of partnership Marvin remedy

common purpose agreement to share profits and losses mutual right of control of enterprise contribute to common enterprise

first way to define relationships

consanguinity cases tend to involve half-blood, step, or adoptive relationships ORS marriage to first cousins and those to closer family members is prohibited and void, including relationships by blood and adoption except when first cousins by adoption; first cousin marriages and sex aren't criminalized as incest under the criminal code - can't marry but can have sex

meretricious factors

continuous cohabitation duration of relationship purpose of relationship pooling of resources

implied in-fact contract Marvin remedy

contract that's assumed based on actions of the parties process for remedy under implied contract is remedy accepted what consideration is sufficient to support an implied contract - generally homemaking is insufficient because given gratuitously actual remedy practical considerations - even if jurisdiction has lots of remedies, there could a lot of litigation; wouldn't need lots of litigation with marriage

informal family partnerships

covenant marriage common law marriage putative spouse unmarried cohabitants: reciprocal Bs, civil unions, domestic partnerships

reciprocal Bs

created during litigation of same-sex marriage not a marital status HI 18+ neither party is married or in another reciprocal B relationship legally prohibited from marrying one another consent - not by fraud or duress

annulment in OR

difference is determined by public policy void: bigamy and incest voidable: underage party, party who doesn't have sufficient understanding or mental capacity, party entered by force or fraud

solemnization in general and purpose

doesn't have to be public show good-faith belief to get married most courts won't invalidate for lack of solemnization virtual weddings aren't sufficient

ALI approach to unmarried cohabitants

domestic partners get the same treatment on dissolution as married couples live together for significant amount of time share property like a couple still not marriage because you get none of the rights vis a vis 3rd parties - government doesn't see you as married

marriage evasion statute

don't have to go through restatement analysis because this trumps them if parties go to states to try to validate their marriage when they're home state doesn't, it's not going to be recognized

putative spouse presumptions

marriage is valid and it continues the last of successive marriages is valid (generally the stronger presumption in the law; absent any contrary evidence, the second wife is going to win; generally, the judge's image is that typically someone leaves one spouse, marries, and lives with that spouse - gives wife the benefit of her expectations of marriage for many years) - presumptions conflict in Spearman; resumption is rebuttable; arose when others were married about attacking their marriage

presumptions of paternity under UPA 2017

married to mother, even if marriage is invalid child is born within 300 days of end of marriage, even if marriage is invalid after birth, parties marry and he voluntarily asserts paternity - that's filed with the state or he agrees to be and is listed on the birth certificate during first 2 years of child's life, he resides with child and holds child out as his own

adjudication of paternity under UPA 2017

method used when state wants to establish paternity if no other presumed, acknowledged, or adjudicated father, this is an easy way to establish - blood tests reveal no time limit unless there's a presumed, acknowledged, or adjudicated father if another, 2 years to challenge generally only way to challenge is through genetic testing sexual assault perpetrator may be denied legal parenthood may still have obligation for child support exception if bonded relationship with child already

3d Restatement for unmarried cohabitants

middle theory - equitable theory if two persons have formerly lived together in a relationship resembling a marriage, and if one of them owns a specific asset to which the other has made substantial, uncompensated contributions in the form of property or services, the person making such contributions has a claim in restitution against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship rule above may be displaced, modified, supplement by local domestic relations law

statutory age restrictions in general

minimum age is 18 without parental consent - some states require 21 minimum age is 16 with parental consent

UPA 2017 for parentage

minority in this context - 6 states doesn't change the law of parenthood but helps families who are forming intentionally get legal protections gender neutral de facto parenthood 3 recognized parents

defenses to marry

misrepresentation fraud capacity

fraud elements

misrepresentation of fact fact is material fact is known to be untrue person intends reliance injured party has reasonably relied

reasons to restrict by relation

morality: history shows it's unacceptable for close family members to marry genetics: incest creates concerns predation: family wouldn't be tempted, children wouldn't be vulnerable dependency between families: create mutual dependency by marrying out

acknowledgement of paternity (VAP) under UPA 2017

most common typically signed at hospital but can be signed before both parents takes effect after filing or after birth, whichever is later can only sign a VAP and have it be valid if there's no other dad and presumed dad has denied paternity; full faith and credit rescission for 60 days after that, can only be challenged for 2 years for fraud, duress, material mistake

Connell v. Francisco

most conservative theory: in a meretricious relationship, property that may be characterized as community property had the couple been married is subject to equitable distribution, while property acquired prior to the relationship is not no alimony because not marriage

1st amendment challenges to polygamy

most practice for religious reasons free Exercise Clause doesn't prevent the state from doing nothing because government has inherent police power to regulate activities in a certain way 1st protects believing and professing anything, but conduct is still subject to regulation for protection of society - state can't target religion; if a state is targeting religion, strict scrutiny applies

current state of common law

most states have abolished common law marriage - only 8 have it trend is to continue to eliminate it - OR doesn't have common law marriage; if 2 people are domiciled in a state that recognizes common law marriage and they move to OR, OR recognizes that marriage (lex loci - not against public policy)

agreement to marry may involve contract principles

mutual assent offer acceptance defense

implied joint venture Marvin remedy

narrow in scope than partnership - agreeing to specific business objective implied: pooling resources but need mutual intent for all theories

Braschi v. Stahl Associates

nontraditional family of two men in a long-term relationship living together who couldn't get married because of the law had qualities of a traditional family - prevent eviction after one of their deaths factors: exclusivity and longevity of the relationship, level of emotional and financial commitment, manner in which parties have conducted their everyday lives and held themselves out to society, reliance placed on another for daily family services

mutual assent to marry - duress

not valid force of threat of physical force = duress (rare) undue influence can make a marriage invalid

Marvin v. Marvin

one partner of an unmarried couple may seek to recover from the other under the same rights of action available to other unmarried persons couple orally agreed to hold themselves out as married, pool their assets, share fruits of efforts equally, have the woman stay home, and have the man support her - he later kicked her out of the home, but she had remedies based on express contract and others

how to have covenant marriage if jurisdiction doesn't recognize

parties agree to terms under a prenuptial agreement

constructive trust Marvin remedy

person would be unjustly enriched if they were able to retain property person making claim generally contributed money to property, and that money was obtained by other person through wrongdoing example: grandson gets funds from grandma promising that he would drive her around in his new car knowing that he never intended to take her anywhere

Pickard v. Pickard

petition for annulment can be denied with judicial estoppel if it's shown that P's claim of being lawfully married is inconsistent with a subsequent position, the acceptance of P's conflicting positions might pose a threat to judicial integrity, and the P would otherwise derive an unfair advantage or impose an unfair detriment judicial estoppel prevented annulment where a Cherokee Native American married a couple in the Native American tradition who believed that the ceremony was legally sufficient to bind them as spouses and held themselves out as married for next 11 years, including indicating marriage on adoption paperwork

annulment in general

possible when one or more parties weren't able to get married when they did

fourth tradition of Obergefell

precedent and tradition make it clear that marriage is a keystone of social order society supports married couples by recognizing their marriage and providing benefits there's no difference with same-sex couples, yet they're denied benefits

first tradition of Obergefell

precedent says that right to marry is inherent in the concept of individual autonomy it would contradictory to recognize rights of privacy in family life, such as contraception and procreation, and not recognize the privacy of entering into a relationship that's the foundation of family

second tradition of Obergefell

precedent says that the right to marry to fundamental because it support a two-person union unlike any other in its importance to the committed individuals Griswold: married couples have the right to use contraception Lawrence: same-sex couples can enjoy intimacy

covenant marriage requirements

premarital counseling: stresses aspects of the marriage, including seriousness written agreement to try to preserve the marriage: marriage counseling, be subjected to law make divorce more difficult if jurisdiction recognizes, get a license for a covenant marriage

express contract Marvin remedy

rare - couple explicitly agrees

legal status for intimate partners by legislatures

reciprocal Bs civil unions domestic partnerships

solemnization UMDA

some states usually for people who are incarcerated, in the military, or living in different countries; not good for all purposes, like federal ones relating to immigration; there must be written authorization that someone will act as their proxy person truly can't be there there's consent

restrictions on marriage in Loving

statute that prohibited interracial marriages was unconstituional because it violated EP of the 14th Amendment under strict scrutiny due to racial classifications; also deprives of DP under the 14th Amendment because it deprives people of the fundamental right to marry

Lutwak v. United States (SC)

the War Brides Act is violated if individuals conspire to conceal from authorities that marriage entered into by Armed Services veterans and noncitizens were never intended to be permanent there was no good faith intent to marry and consummate

In re Marriage of Ramirez

the marriage can be annulled due to fraud based on the sexual aspects of the marriage - husband purposely deceived his wife into thinking that he would perform one of the central obligations of a marriage contract, fidelity

Spearman v. Spearman

the rebuttable presumption that a second marriage is valid may be overcome by evidence presented by a purported first wife that her marriage wasn't dissolved by death, divorce, or annulment at the time of the second marriage process 1st wife: prove marriage wasn't dissolved 2nd wife: prove that marriage was dissolved common law: someone is presumed dead after a certain number of years - some statutes allow for the end of marriage after certain amount of time and that you searched for them, which avoids an invalid marriage if missing spouse shows up

Zablocki v. Redhail (SC)

the right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstituional unless narrowly tailored to the accomplishment of an important governmental purpose statute that denied indigent people from marrying failed strict scrutiny because it wasn't closely tailored - there are other less discriminatory means to compel delinquent people to fulfill child support obligations

third tradition of Obergefell

the right to marry safeguards children and families, which relates to right of childrearing, procreation, and education right to marry and establish a home with children is a central part of liberty under DP Clause children can understand the closeness of their family if marriage is allowed same-sex couples are already raising children

Marvin remedies for unmarried cohabitants

these remedies are the most liberal express contract implied in-fact contract implied agreement of partnership implied joint venture quantum meruit unjust enrichment constructive trust

defining family functionally

traits of a traditional family

strict scrutiny

triggers: fundamental right (right to have offspring or right to privacy) or suspect classification (race) test: necessary to achieve a compelling state interest burden of proof: on the government

consequences of underage marriage

underage marriage or one without permission is generally voidable ORS: incapable of making a contract if below legal age - void from the time a judgment declares it

reasons for prohibiting polygamy

unequal power in polygamous relationships - wives are competing for attention, and they may fear the loss of it if the husband decides to bring in another wife destabilization of society - people, especially men, could be left without partners

unjust enrichment Marvin remedy Cates v. Swain

unmarried cohabitant has a claim for unjust enrichment against another unmarried cohabitant if the retention of readily identifiable assets by one party would inequitably benefit that party unjust enrichment applies to situations where there's no legal contract and the person sought to be charged is in possession of money or property in which good conscience and justice he shouldn't retain but should deliver to another; equity imposes a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong; amount of recovery is that to which the claimant is equitably entitled court returned the two women to their previous financial status because one would have been unjustly enriched by the sales of the home that the other financially contributed to

mental capacity restriction in OR

voided by judgment

Blumenthal v. Brewer

women had an opportunity to get married or enter a civil union, but they never did; channeling people into marriage through an incentive of enforcement of mutual property rights because cohabitation is immoral (one end of the spectrum - generally wouldn't be followed in most states today)

civil unions

approach when same-sex couples couldn't marry similar to domestic partnerships OR still has this even with same-sex marriage some jurisdictions don't treat it as marriage - marriage lite

one at a time restrictions

bigamy: crime for knowingly entering second marriage polygamy: someone marrying two or more people - domestic relations defintion; no state allows

ways to establish parenthood generally

biology marriage functioning as a parent intending to become a parent birth certificates generally don't determine parentage but give rise to presumptions

common law marriage elements

capacity agreement to marry presently (includes intent) cohabitation holding out as married

interstate recognition of marriage under the Constitution

Article IV, section 1: full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state Congress can, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof meant to promote a unified country and stop judgment debtors from being unpaid by people fleeing to another state most scholars say that it doesn't apply to marriage - use conflict of laws no public policy considerations can waive the clause most scholars say that a state doesn't have to give up its own view of the law or recognize a marriage against its policy - others have pushed back

first half of state approach to marriage validity

Lex loci Restatement 1st a marriage valid where contracted is valid everywhere unless the law violates strong public policy of the forum generally promotes recognition because it's consistent with the expectations of people getting married - most people are expecting to get married all other states recognize Vegas marriages despite them being less formal common law marriages can be recognized in other states even if the state in which the couple lives doesn't recognize it don't have to recognize marriages that go against public policy, like incest or polygamy

restrictions on marriage with gestational agreements

In re Gestational Agreement: statute that required gestational agreements to be validated by a tribunal after a showing that the intended mother couldn't bear a child or couldn't bear a child without unreasonable risk was unconstituional because it violates DP and EP - same-sex fathers wouldn't be able to enter a gestational agreement, and that violates Obergefell because states can no longer deny benefits conditioned on the institution of marriage to same-sex couples which are freely granted to opposite sex couples

ORS formalities to get married

all persons wishing to enter marriage must get a license must wait 3 days after the license is issued (most states say marriage is OK even without a license) no particular form of solemnization is required except that the parties are in the presence of each other, those authorized to solemnize, and two witnesses if person wasn't allowed to solemnize but the parties to the marriage believed in good faith that the marriage was lawfully solemnized, it's not voided

domestic partnerships

approach before same-sex marriage was legal OR only same-sex couples 18+ otherwise able to marry same effect as if you're married in terms of obligations to each other and treatment by others some jurisdictions treat it differently from marriage - marriage lite

Constitution can influence defintion of family - rational basis

Village of Belle Terre: ordinance that allowed only one family to live in the unit was upheld because the ordinance was typical of social and economic legislation, which is upheld if it's reasonably related to a permissible government objective; six unrelated students couldn't live together liberty doesn't involve the right to establish a home with the participants one chooses, where the relationship doesn't involve blood, marriage, or adoption Privacy doesn't involve the right to live with others to satisfy one's intellectual and emotional needs within one's home

Armstrong v. Mayor

a living arrangement among unrelated individuals using unified housekeeping facilities can satisfy an ordinance requiring the individuals constitute a single housekeeping unit rights and responsibilities with respect to each other as they related to the sharing of common areas = key for housekeeping unit transience may not be sufficient for a single housekeeping unit

Nguyen v. Holder

a marriage between a half uncle and half niece isn't void as incestuous because the purpose of restricting marriages is rooted in preventing diseases and defects a half uncle-niece relationship doesn't raise concerns, and the relationsihp isn't as disturbing and deeply rooted in history as being unlawful as other closer marriages

Edmunds v. Edward

a marriage contract is voidable for a party's mental incapacity only if, at the time of marriage, there was a misunderstanding that rendered the party incapable of knowingly assenting to the marriage mere weakness of mind isn't sufficient to void a marriage unless there's such a mental defect to prevent the party from comprehending the nature of the contract and from giving intelligent consent - marriage wasn't voided

mutual assent to marry - fraud

a marriage is voidable and may be annulled if the consent of either party was obtained by fraud fraudulent intent must be in the offending spouse's mind at the moment the marriage contract is made fraud relied on must directly defeat the marriage relationship, such as infidelity; concealment of medical issues, temper, laziness, coldness, etc. don't count

Porter v. DHS

a party lacks the mental capacity to enter into a marriage contract if, at the time of the marriage, the party is incapable of understanding the nature, effect, and consequences of marriage immaturity alone is insufficient for voiding a marriage

City of Ladue v. Horn

a zoning ordinance defining a family as one or more individuals related by blood, marriage, or adoption is constitutionally valid as long as the ordinance is reasonable and bears a rational relationship to a permissible state objective mere fact that people live in the same house, shared household duties and a joint banking account, and interact with each other's children doesn't mean that the unit constitutes a family there's no fundamental right for two unmarried individuals to cohabitate - ordinance gets rational basis review; ordinance constitutes valid land use legislation that was reasonably designed to maintain traditional family values and patterns = constitution

ways to establish parenthood under UPA 2017

acknowledgement of paternity (VAP) adjudication of paternity unrebutted presumption of paternity

second way to define relationships

affinity (relation through marriage) virtually no prohibitions today

grounds for mental incapacity to enter marriage

alcohol and other substances duress fraud

validation statute

all marriages that were valid at the time of the contract of subsequently validated by law of the place in which it was contracted is valid in the state no public policy considerations

parent-partner status duties

duty to aid parent would have to lend reasonable assistance to their partner if the partner were physically imperiled failure to do so would make the parent liable for resulting damages duty not to abuse law could be improved in some states to meet the needs of these partnerships (gaps with POs) duty of relationship work reconciliation and friendship counseling at the end of the relationship could be beneficial duty of honesty law should require a partner who seeks to enforce a family law contract to show that the agreement was voluntarily entered, that certain disclosures were made, and that the agreement is substantively fair at the time of enforcement duty of care require partner to pay compensation to the other parent for any unfairly disproportionate caregiving that the other parent provided to their child not a support obligation but compensation - caregiver's need, obligor's ability to pay, and the parents' marital status would be irrelevant to eligibility judges would impose a just remedy if parents couldn't agree, being guided by compensatory theories and factors (time each parent spent working in the market and the home, relative allocation of market work and nonmarket work between the parties, couple's sharing behavior, couple's agreement about the allocation of work and the sharing of economic resources)

State v. Holm

entering into more than one marriage, even if the marriage is religious in nature and not registered in the state, constitutes bigamy, which isn't protected Holm legally and religiously married Stubbs and then her sister - his conviction of bigamy was appropriate because a state can burden free exercise of religion absent a compelling state interest so long as the burden is imposed by a neutral law of general applicability, which the UT law was, and criminalizing polygamous behavior didn't conflict with personal liberty interests of the 14th Amendment

defining family formally

family is individuals related by blood, marriage, or adoption

parent-partner status in general

for all couples last for child's minority and the end of romantic relationships intended to fill gaps in the law and form a new social role

hard to challenge that marriage is valid because of these presumptions

formalities have been complied with ceremony was proper parties had capacity

constructive trust elements and outcome

fraud/wrongdoing (easier if confidential or fiduciary relationship) promise transfer (typically money) in reliance breach of promise unjust enrichment give them an interest in the property

resulting trust Marvin remedy elements and outcome

gave money for property with intent to have a beneficial ownership gives them an interest in the property

putative spouse in general

good faith marriage ceremony cohabitation allowing one who in good faith married another in a ceremonial marriage to obtain the legal rights of marriage even though an impediment existed that made the marriage void or voidable rationale: honor expectation of party's legitimate expectations jurisdictions vary with the rights given to putative spouses

why polygamy doesn't survive Obergefell

history may not support it living constitutionalism may not urge a change

implications of annulment

if voidable, typically can get an annulment or divorce even if marriage could be annulled, courts can sometimes grant divorce-like remedies whether equitable defenses are available depends on the jurisdiction children are still considered legitimate

Boulds v. Nielsen

implied in-fact contract property of unmarried cohabitants can be equally divided in a marital-like fashion if the parties formed a domestic partnership and intended to share in the fruits of their relationship as though they were married wife was dependent in domestic partnership and both parties intended to share in the fruits of their relationship in pension governed by ERISA

quantum meruit Marvin remedy

implied in-law contract (example: promissory estoppel - unjust to not allow other person to enforce contract)

Matter of Geraghty

in determining which state law governs for divorce, a court tries to maintain predictability of results and reasonable orderliness among states, simplify the judicial tasks, advance its own state governmental interest, and uphold its preference for what it regards as the sounder rule of law divorce in NH where parties live v. annulment (prostitution and drug use) with NY law where marriage was entered

mutual assent to marry - intent

intent must be part of consent

substantive due process

is a fundamental right infringed if so, the law gets strict scrutiny if not, rationality review

rational basis

law is reasonable and not arbitrary and bears a rational relation to a permissible state objective

promissory estoppel elements

legal relationship promise reliance detriment unconscionability (unfair of the promisor to break promise)

ORS age restrictions

males and females are least 17 years old with parental consent and otherwise capable of entering into the civil contract if under 18, must have consent of parent/guardian to get a license if no parent/guardian within the state and either party has resided within the county of marriage for at least 6 months immediately preceding application, license can be issued marriage voided by judgment if underage

common law marriage presumptions

marriage is valid and continues last of successive marriages is valid