Family Law Outline

Marriage

Annulment – marriage never existed

Full Faith and Credit – Exception - when is it against the public policy the state court has the discretion
whether to recognize repugnant to public policy

Mass Statute 207 § 1,2,3

p.2 Singh

1/19/06

In all N.E. States except New Hampshire marriage to first cousin.

Hypo. A & B, 1st cousi9ns married in Cape Cod A goes to New Hampshire. Is marriage still valid?

If a marriage is valid where celebrated it is valid everywhere with exception if it is against strong public
policy it is repugnant.

p.4 incest marriage or sexual relations between persons too closely related is consanguinity or affinity to be
entitled to married legally.

Consanguinity – people descended relation by blood or origin

Affinity – relation – family not blood

Rev. 9 Back – x- step daughter and father married ct. not daughter anymore after he divorced her mother

When the step father procured a divorce and after that time plaintiff was not the daughter of the decedent’
wife and the marriage between them was valid

In Mass disagrees with the back case MGLA § 207 1,2.3

Affinity can’t be dissolved by death or divorce

p.14 review in re Black

Court can’t prohibited the practice of religion, but when the practice violates the law – the court may
interfere such as polygamy

Sanders p. 22 – moral character is only one of a myriad of factors the court may properly consider in
determining a child’s best interest.

Chandler & Dolan Cases unintentional polygamy where the people don’t realize they are still married

Death, Divorce or Annulled otherwise still married

Presumption of validity of subsequent marriage – protects the expectations of parties & protects children
1/24/06

All states if parties are related by blood too closely (that is relative) is void

Chandler & Dolan case – ct. overlooked bigamist marriage

Why did the court do this?

1. Best interest of the children
2. Protect – presumption of the validity of the first marriage, court willing to recognize because the
parties did not knowingly commit bigamy to protect

Hypo. A marries B both believe B is divorced – but B is still married – what should happen to the second
marriage.

Prior marriage is still valid unintended bigamist

1. Saving Statute – protest the spouse who enters into marriage in good faith

Example – MGLA 207 § 6 – subsequent 2 nd marriage ceremony & live together but 1st still valid 7
unknown to a least one parties – CHANDLER case

2 Punitive Spouse Doctrine – Not a spouse but a party to ma that is legally invalid person –
ceremony acquires rights of a spouse
Ex. Alimony
1. Good Faith
2. Ceremony

Public Policy – Recognize marriage & Legitimacy of children

Chandler Case – Presume

1. Marriage is presumed valid, a party attacking it has the burden of proving it invalid
2. Presume parties entered in Good Faith
3. Presume person doing ceremony is qualified
4. Capacity of parties is presumed

Goodridge – same sex marriage (redefined)

Voluntary unit of 2 persons as spouses to the exclusion of all others

Not alls states define marriage in the same way – Full faith and Credit v. Conflict

If repugnant to the social policy of the forum state

THREE Essentials of a Valid Marriage

What are elements of a marriage
1. Parties have legally capable of entering into marriage
2. Mutual consent
3. Actual Contracting in the form of law of the jurisdiction

Common Law Marriage still have to have capacity; still have to be capable of entering into marriage

I. Actual Contracting
A. Legal Ceremonial
- Recognize in all jurisdiction
1. capacity
 2. agreement
3. solemnization; ceremony performed, a person clothed by state law authority to officiate
4. License & Registration
Marriage – Goodridge
A Civil Institution

B. Religious Ceremonies on their own do not validate marriage

Prust, Rabbi has to have the authority of state civil requirement under state law – not just any leader –
some fringe independent

Common law marriage

Not recognized in Massachusetts, but if you enter into some other state a common law marriage Mass
will recognized

Proxy Marriage – one of the parties is not present, but has a stand in the ceremony – not recognized
in Massachusetts example – someone stationed overseas

Pre & Post Marriage Counseling

Any Person may marry another person of hi/her choice Except:

1. Incest – too closely related by blood or marriage
2. Bigamy, polygamy – party is already/still married
3. Mental capacity – if parties lack mental capacity
4. Insufficient age
5. if parties are of same sex (mass is only state that recognizes same sex marriage)

Hypo. A man – sex change to woman A marries B – married 20 years B’s son C. B dies intestate – C
claims to be only heir – no legal barrier p.45

Baker case

Civil Union is different, not a spouse

1/26/06

Marriage statutes (void)

MGLA 10 & 11

The validity of marriage where people reside in Mass go elsewhere – when they know it would be void in
Mass.

If someone from some other state to Mass to avoid their own marriage laws – void

Constitutional Limits on Marriage

Rev. Loving v. Virginia p. 46

Interracial marriage
Equal Protection

Marriage is one of the Fundament Basic rights – Condurelli read section 2 page 47

Rule of law – Race is an impermissible substantive restriction on marriage

Strict Scrutiny Zablocki – page 48

In Wisconsin – child support restriction on getting marriage certificate

1. When limited it needs to further a legitimate Governmental purpose and

2. That there is no other way to accomplish that goal in the case child support
Reasonable regulation do no significantly inter

Page 51 –Strictly Scrutiny – Analysis

Zabloci refinement of Loving

p. 58 Turner v. Safely
Almost a complete bar must be related to legitimate a state interest

p.61 Keeny v. Heath –recognize some limits, Prison guard marries prisoner state may interfere only when
necessary and the state may burden the right to marry. When the burden outweighs the benefit.

p.63 Walker – Bankruptcy – burden too heavy on marriage

p.64 Rev Moe – Parental Consent

Legal Capacity – if minor

Ratification

Hypo. A is minor. A fraudulent represents that their age of majority. A marries and remains married till 30
years old. A claims marriage is void. By staying after he turned 18 – A Ratified marriage – laches –
estoppel

1/31/06

Massachusetts – Fault Jurisdiction – Minority

Conditional gift unwise reliance on fault

What is fault – failure to perform some marital duty?

Engagement – exclusive relationship in contemplation of marriage

Heart Bomb Action – Breaking up an engagement – in most jurisdictions, abolished in Mass

Suits to recover gifts unjust enrichment, fraud

State of rights, duties and responsibilities

Annulment – relates never back to the date attach of marriage

Page 407

Divorce – Terminates a valid marriage

Annulment- Declares no valid marriage ever took place because of some impediment at the time of the
ceremony

Void or voidable marriage

Annulment – relates back to the date of the marriage rights, duties and responsibilities never attached
Re. Jo fraud must go to the very nature or essence of the marriage

Hypo. A represents to Barbara Von Hosing she claims to be a master degree graduate married B. B finds
she's been in jail and is Julie Azzee

Is it a valid Annulment – Concealed past may or may not be enough

Case that do about sexual relationship fertility or religious belief

Hypo. A marries B. A represents an orthodox Jew and is not

Religious is significance

Not – Love, character or past life not significant

Review – Davis v. Seller – extra case

MGLA 207 §10 & 207 §5

Insane person – repealed

Except when it a offends the strong public policy

Gen Rule: Marriage may be invalidated because of mental incapacity or under influence of alcohol or drugs
1. Does the party have capacity – able to understand the nature of the act, the contract and
the responsibilities
2. At the time of the ceremony the solemnization

Ratification or what is laches – unreasonable delay that causes prejudice

Capacity vs. Incapacity was the person lucid during the ceremony

It is going to be up to the party attacking the validity of the marriage to prove incapacity

Level of wisdom entering into marriage is irrelevant

Ability to consent to marriage

Understanding the responsibility of the marriage contract

Whether party is induced to by fraud, coercion, duress

Marriage – Fraud

What is fraud? Fraudulent misrepresentation before marriage must be material and relied upon and go to
the essence of the marriage

Hypo. A wife represent that she is pregnant by B, her husband B marries A because he thinks that he got
her pregnant. Not so, C is the father. This may be material – but B needs to act us soon as he finds out – if
B tries to workout the marriage than laches, estoppel & ratification.

Coercion – duress perceived by the compliance party at the time of the marriage – duress invalidates
consent – impediment
Sham or Jest Marriage, mock a dare No intention of being bound what good would be served by keeping
the parties together

If a party is looking to invalidate a marriage it was to be done promptly

Marriage create certain responsibilities

Clean hands marriage doctrine (sham marriage) Us Gov, Immigration may find a marriage a sham

Procedural
If Marriage is procedural deficient, A & B don’t have marriage license but believe that they are married –
court will find there was a marriage

Hypo. Clergy member is a fake – marries A & B – Ct. will uphold marriage

p.86 Rights of a Common Law Marriage

Garges – Capacity, Agreement – REQ

If marriage is valid – common law marriage in its jurisdiction – it is valid in other jurisdiction – the only
way to end it through judicial declaration

Trend is to move away from restriction

2/1/06

Rev Garges Estate – present agreement w/ consent to being married – holding out in the community

p.89 Elements of Common Law Marriage

1. Present intent and agreement to be married
2. Continuous cohabitation
3. A public declaration that the parties are husband and wife

Most important factor to demonstrate parties intended to be husband and wife to each other

Primary indicator – declaration

Found continuous cohabitation

There are some jurisdiction where common law marriage do not require affirmation once impediment
removed some required affirmative act once the impediment was removed

The validity of a marriage is determined by the law of the place where it was contracted

No public policy support

The party failed to prove by clear and consistent and convincing evidence that a common law marriage
existed

Common Law Marriage

Voidable – Has to be annulled or it is held invalid

Void – No act is going to ratify that marriage

Hypo. An underage marries B – void, once A reaches 18 years of age it is ratified and becomes voidable
Mental Capacity & Duress

Hypo. A marries B, while stinking drunk – if A sobers up and says I’m going to make it work, he has
ratified it.

What happens to children of invalid marriage can grant visitation support, health insurance

No Alimony or divide of marital assets allowed

Hypo. A & B lived together for years as if married – but never married – Their jurisdiction recognizes
common law marriage – A real husband married until year ago

Impediment is
Kind of depends on jurisdiction once impediment is removed behavior may have to chan

M & N consider and hold themselves out to married. N never got a divorce from O. O dies. N places ring
on M finger, Insurance won’t give Money

1. Agreement – present to be married

2. Cohabitated
3. Once impediment removed, changed behavior to show new status

Annul because inability to have kids? Did any one commit fraud, no one was mislead will not invalidate a
marriage

2/7/06

Marvin v. Marvin

Marital Community Property Rights – During the course of marriage parties hold property for the benefit of
the community of marriage if property acquired during the marriage

Under Marvin support agreement between cohabitants are enforceable unless consideration is based on
sexual favors

In Massachusetts
Wilcox v. trot
427 Mass 326
Woman had a relationship with a man, man had her sign – you had what you got
Never recognized common law marriage

Parties may recover an action in contract or breach of equity but no consideration there is support like any
other stranger
MGLA 208 § 34

Unjust enrichment, estoppel

Regular contract standards

What are the rights and obligations of husband and wife?

Duty and responsibility to support each other

Doctrine of the Necessities

What would it mean for someone to be a public charge – food, housing, medical and clothing
Funeral – in some jurisdiction

Complaint for Separate Support

Mass version – Divorce for Bed and Board in mass spouse can ask court for support, while still married
without dissolving the marriage. Do not have to be living apart.

p.95 Graham
Agreement should not change the essential of marriage, it is against public policy

What will they leave the marriage with

Graham thought they had this freedom – they didn’t

What are the parameters?

Rev. p 181 Edwardson

Simeone p. 184
Prenuptial agreement

What are the conditions that they’re go

1. Full Disclosure
2. 2 Freedom from …
3. No unconscionable of the enforcement “shock the conscience”
Uniform Premarital agreement act Conn & Maine only New England state that follow

Should courts see these agreements as anything different form other contracts

Difference, not in arms length bigger chance to overreach

Prenuptial agreements are contracts, and, as such should be evaluated under same criteria as applicable to
other types of contracts, absent fraud; misrepresentation, or duress, spouses should be bound by the terms
of their agreement.

N.H. enforcement of prenuptial

1. Fraud, duress mistake
2. Unless unconscionable
3. Unless prove facts and circumstances have changed since executed that make it unenforceable

ex. Bad Faith, hold onto prenup until the day of marriage attorney – Duress

The equal Protection clause does not demand that a statute necessarily applies equally to all persons or
require things which are different in fact to be treated in law as though they were the same, this court has
consistently upheld statutes where the gender classifications is not invidious but rather realistically reflects
that sexes are not similarly situated in certain areas

Osborne – Massachusetts Leading Case on PRenups

Court will enforce alimony and property

Dematteo – establishes procedure

1. prenup valid – does it comport with … of all contracts ex, consideration, free of duress
 2. Fair Disclosure

Term of agreement – make a fair and reasonable prevision at the time of execution

Mrs. Dematteo -Conscionability Standard

MGLA 208 §4 – whether or not prenup was fair and reasonable

Rose Analysis
1. Is Agreement valid – disclosure
2. 2 Any reasons not enforce

Osborne – if one party will be public charge – court may modify

Osborne & Dematteo – not going to enforce things that change the essential duties of marriage

Not against public policy per se

Requirements
1, Full Disclosure
2. Fair and Reasonable at the time of judgment Nisi hypo waiting period 90 days
Someone – Not gonna look to see if it is fair and reasonable – standard is unconscionable

Hypo. What if wife finds out she is pregnant

We therefore hold an ante nuptial contract setting the alimony or property rights of the parties upon divorce
is not per se prohibited

Prenup
Massachusetts – Fair and Reasonable standard at the time of contract court and enforcement

Simeno case – use unconscionability as the standard

Osborne case is the lead case when it will be enforced

Court may modify if:

1. Public charge
2. children involved

Parties cannot contract for children, court have continuing jurisdiction – oversight

1. Disclosure
2. Substantially not fair and reasonable
3. 11 day period – duress
4. No attorney – not having given a meaningful waiver
Equal Protection clause does not require everyone to be treated equally

Surnames
Trend is usage and Customs
Massachusetts – assumes or adopts Husband name – resume maiden name by court order

Mass statute, if child is going to take the last anem of the step child – need to get step parent consent

I no parent connection no legal right to give child surname

Hypo. A rising star in law firm. A wants to be partner. After partnership ambition. B meets with A and tells
her to pretty up and date him

Does A have to complain to supervisor? No, she can become a partner Title V -can make equitable
partnership

Rev, 181 Burlington Quid Pro Quo cases

Hostile work environment Title V so pervasive, agency principle control

2/22/06

Fault Grounds

No Fault Ground

Will there be legally cognizable grounds, which will entitle one of the parties to dissolution of marriage no
fault

Court effectuates, decrees a desolution

Bad Conduct – one factor to be considered, probably not goon result

Adultery

Cruel treatment

Some jurisdictions are exclusively no fault

In the place of 2 witnesses only mother needs consent, if there is Adoption – can ask, mother for sworn
statement – who the father – for notice purpose it is the of the court

Consent to adoption

Father of children

When mother surrenders a child for adoption notice of that termination, surrender

So much is up to unwed

Adoption/surrender

Notary 2 witnesses – Dad gets notices, if he has filed a declaration to assert paternity or if she had named
him
Public Policy favors finality in adoption

Difference between divorce and separation

Woman separated from husband for a number of years

Separate support establishes the terms– marriage is still intact

No such thing as legally separated from husband or wife in Massachusetts

Complaint for separate support procedure is there

Divorce – only divorce can terminate a marriage by judicial decree

Even if Married by Common Law only way to terminate is judicial decree
What happened after the parties were married assume parties were married if not, not entitled to marriage

What were the circumstances surrounding the marriage

2/22/06

Ch. 209 C § 5 Statute mass- Commenced by mother and person alleging father

Does the Mass statute disfavor the unwed father? Yes

What is the presumption, child born within marriage or paternity for father or within 300days of
termination of marriage – complaint may not be4 filed unless husband at time of the marriage what he does

Mother, Husband and punitive father all would have to file docs. Husband has to file a denial of paternity in
effect claiming the wife guilty of adultery

A presumption of paternity I the names is on the birth certificate and he signed

Complaint to establish paternity paragraph

1 & 5 – mother not married at the time

Plaintiff or def - , may be ordered to supply health insurance

Custody and visitation the right to make determination fo0r a child

Case this is what the court had trouble with a person breaking into a marriage against public policy

Unmarried dad – no custody ort visitation rights, mother has custody unless ct. ordered unmarried dad no
enforceable rights – or 2 voluntary admission of acknowledgment

Or the mother only the father if child is born out of wedlock of mother only – how do we get unwed dad
visitation – establish paternity or acknowledgment

Presumption of Paternity –When a legal Presumption is raised?

Taken as true, shifting the burden to the party

2/22/06
Benscotter p.353
Under cruelty grounds – general concept
Indignities to the person – is not necessarily a physical attack belittling words

Jurisdiction wise different grounds

Fault Grounds Divorce must be an innocent and injured spouse entitled to divorces – may not have to wait

N.H. Still has a fault ground statute

No Fault – separation time requirement filing requirement – may take more time – whether the marriage is
over
REQ – separate lives and house to show there is a break down

Mass – unless agreements No fault wait 6 months

Fault divorce - don’t have to wait

What is it going to take to prove fault grounds divorce – nay take a witness?

Adultery – Mass have to name the codefendant

“A my spouse is guilty of adultery and here is the persons name – compound affidavit the person person is
going to be served

It is subdued in other grounds

custody are going to judged on the best interest of the child, if it is going to be judged on marital
misconduct, it has to have some impact on the child

Financial – if women guilty of marital misconduct no entitled to alimony – historically – but not now

Wife or husband went out with Paramour drained finances – this will considered when diving money

Mass does not have a living apart requirement for filing a no fault divorce?

NON Fault MGLA

1. Uncontested 208§1A
2. Contested 208§1b

Nisi – 90 days

1A – Uncontested – Joint petition we’ve agreed married is over affidavit – this is what has happened in
marriage to sustentative the marriage is broken down. There is no reasonable likelihood of reconsideration
– judgment -90 days Nisus and then final

Visitation, support, custody how assets are going to be split. Car, life, dental, medical, insurance

Request hearing – get one within 30 days

If court finds it fair and reasonable and knowingly, full dies closure

Court can implement and either

1. Make it part of judgment or

 2. Survive as its own separate entity
During Nisi if within 90 days cohabited court may vacate

If party dies, decree NO Effect

One party can petition to vacate

If parties do not agree on every point – it is not uncontested

Conduct Impacting

Court can make orders to the use occupancy of the house

What were the elements necessary to prove cruelty?

The grounds have to be established, threshold conduct

Deliberate physical abuse or nonphysical conduct that one spouse knew course of conduct, that the abuse
conduct that one spouse know would physically I jars the health of the other

Ex. A chokes B, it B passes out

Reasonable person standard

Elements of Cruelty
1. Course of conduct
2. So severe
3. Adverse consequences – some physical effect or danger

Mass – Cruel and Abusive Treatment – Injury too life, limb or health

Impairment of physical or metal well being where there is physical evidence

Ex. Weight loss

Adultery
Arnold p.356

Adultery doesn’t have to be proven by somas, actually seeing the act

Non coquito conduct – adultery in some jurisdiction

N.H. 2003 in re Blanchwarttr

Hus & wife has lesbian lover – not adultery

2/28/06

Fault Grounds (mass has retained fault grounds)

Adultery Cruel Desertion impotence Gross No Sentence to
& Habitual Support confinement
Abusive intoxication of 5 years or
more
Always call dad if given no sympathy

No Fault
Contested 208§1B Uncontested 208§1A

Have to establish legally cognizable reason in the jurisdiction, can’t just decide party want a divorce

1. Cruelty
2. What has to established
Hypo. A & B married. Move to Islamic Community B & child go first. A stays and sells house. Donates to
isamluic communtuiy. B and now 2nd child escape at night, files for divorcee Islamic leader control every
aspect of women lives in the community – Court grunted divorce on the grounds of cruelty.

- Habitual Cruelty

Adultery – It is crime

It can vet proven by circumstantial evidence

Elements of Adultery
1. Adulterous Intent or Disposition
2. Had the opportunity
If you have these two elements doesn’t need an eye witness

Facts lead fairly and necessarily to adultery requirement of proof

Birth of child, where child is not biologically linked to husband can prove adultery

Desertion
1. Leaving with intent not to return
2. Leaving is without justification
3. without consent

Hypo. Moves to NY for job, but stays there

If it is done for the purposes of supporting family, sending checks back it is Not Desertion

Desertion – A voluntary departure without justification, without consent of spouse and intent not to return
for the statutory period – Mass 1 year

Fault grounds base for divorce??????????? Defense to other fault grounds

Defense

Wife’s intolerable conduct

Constructive Desecration Does not require a physical desertion

Constructive Desertion – a leaving of the marriage

Have to abandon all duties to family

Legally cognizable grounds

Recrimination (affirmative defense) – abolished in Mass

IN Massachusetts Affirmative Defenses

1. Connivance – facilitate
2. Condo nation – forgiveness
3. Collusion – hues & wife plan
4. Insanity – M’Nagthen Rule – IN mass

Affirmative Defenses – only applies to fault grounds

p. 364 Condi nation – Forgiveness, express or implied coupled with the so , marital conditions the offense
won’t be repealed – some jurisdiction – if repeated continuation dissolved

P.367 Collusion – Agreement between among the parties to obtain a divorce acting together to bring about
a divorce
Parties don’t want to wait on no fault divorce, wife and husband contrive to some abuse to get fault divorce

P.363 Connivance – willing consent to the others misconduct – Facilitation

P.368 Insanity M’Nagthen Rule

p.380 Massar -Expanding

Per se Rule Adopted – limiting the grounds to No Fault enforceable should be enforced unless…

p.382
Court won’t enforce agreement against public policy – married coupled making agreement they can
separate and act like their single romantically

p. 386 Elam
Certain jurisdictions have difference in separation

A finding that a marriage is bad is sufficiently

Counsel Role
Hired Gun v. Therapist

Ethical Consideration
Domestic relations – most common complaint
1. Neglect of clients matter
2. 2 Excessive fees – discuss fees and get a written agreement at the outset
Itemized the bills – keep good time records.