Family Law Set 1

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CHAPTER 1: CONSTITUTIONAL OVERVIEW

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Marshall v. Marshall (2006) Pg. 1
Facts: Defendant, E. Pierce Marshall is the son of J. Howard Marshall. Marshall, a senior citizen and one of the wealthiest men in Texas married plaintiff, Anna Nicole Smith who was 24 years old. Marshall promised to give the plaintiff one half of his wealth, but his son committed several acts while Marshall was alive to prevent Smith from receiving his money.
Procedure: This is in fed ct. Vicki’s federal bankruptcy v. Pierce’s Tex. Probate.
Issue: Fed jxn over Vicki’s tort claims, or barred by probate/domestic relations exception?

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Rule: Matters of divorce and probate are issues that fed cts don’t touch. SMJ = US SC stays out of family law. Family law is state law. States can set up their own legal system. Unwritten exception to smj diversity.

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Anna Nicole Smith case (Marshall v. Marshall)
Question 1: What is the basis and scope of the exception?
Question 2: Why should we care?

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1- US SC wont get rid of the exception due to precedent. Basis of exception is that it comes from an old US SC Barber decision.

2- Sets contour’s of family law. Gives flexibility to states.

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Barber v. Barber = “We disclaim altogether any jxn in the cts of the US upon the subj of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board.”
What is the statutory analysis? Family law cases are neither law nor equity. Prof said in reality the Barber decision is based on

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on that in marriage/divorce the husband is the only legal body. The wife doesn’t have indep legal existence therefore not a smj diversity case & fed gov’t has no interest in private lives.
Const 1789 all Cases, in Law and Equity
Judiciary Act 1789 all suits of a civil nature at common law or in equity
28 USC 1332 1948+ all civil axns

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i. Judicial Evolution of the Exception slide

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1. Barber – 1859 – Creates exception
2. Markham – 1946 – Fed jxn OK if does not “interfere w/ probate proceedings”
3. Ankenbrandt – 1992 – Restricts domestic rel.
4. Marshall – 2006 – Restricts probate

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Major Divisions of English Law

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Common Law – customary law
Equity/Chancery – created as alternative to common law courts; royal law
Eccles/Church – based on sacraments law; Henry VIII eliminated these and shifted it to equity/chancery court. Parliament then allowed Henry a divorce and made him give his ex some money which we now call alimony.

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B. Gendered Laws
i. Bradwell v. Illinois (1873)
1. Facts: Myra Bradwell can’t practice law bc she is a female. But can’t contract in Ill. so she can’t be lawyer.
2. Issue: Does the Fourteenth Amendment to the United States Constitution provide that one of the privileges and immunities of women as citizens is to engage in any profession?

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3. Holding: The admission to the bar is a matter reserved to the states and Bradwell’s right to practice law is not protected by the Fourteenth Amendment.
4. S.Ct. being a lawyer isn’t a right. It is not a privilege to be a lawyers cuz u have to go thru law school.
5. Equal Protection under 14th Amd wasn’t argued by Myra Bradwell cuz 14th amend hadn’t been passed yet.
6. The ct sees marriage as important and she wasn’t doing her duty as a woman

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ii. Orr v. Orr (1978)
1. Facts: Appellant argued that Alabama’s alimony statute was unconstitutional because it provided that husbands, but not wives, may be required to pay alimony upon divorce.
2. Issue: Is Alabama’s alimony statute, which provides that husbands, but not wives, may be required to pay alimony upon divorce constitutional?

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3. Holding: Such statutes are unconstitutional (violates equal protection clause) in situations such as this where the State’s compensatory and ameliorative purposes are as well served by gender-neutral classification as one that gender classifies.

4. Gender based decisions: Intermediate Scrutiny
a. Substantially related to governmental objectives

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2. Issue: Is Alabama’s alimony statute, which provides that husbands, but not wives, may be required to pay alimony upon divorce constitutional?
3. Holding: Such statutes are unconstitutional (violates equal protection clause).
Original justification?
Current justification?
What do u need to show?

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5. Original justification/Gov’t Objectives
a. Helping needy spouses
6. Current justification:
a. Compensating women for past discrimination
b. Acceptable Goals cuz most of the time women are needed
7. Only need to show substantially related
a. There is no need bc they already have individualized hearings
b. The state had already done all the work to have a gender neutral statute so there was no reason to favor the women

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iii. Constitutional Standards – General Slide
iv. Michael M. v. Superior Ct. (1980)
1. Facts: Gender Cal. Stat. rape law has higher penalty for guys than girls.
2. Issue: Equal Protection violation?

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3. Holding (original justification): No
4. Std of review: Intermediate scrutiny
5. Original justification? Chastity, shame and humiliation
6. Why did statute survive? They came up with semi plausible reason

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C. Marriage and Intimate Relationships
i. Primer on Mormonism

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1. Joseph Smith started Mormonism in NY. On a hill he dug up golden plates and a friend wrote down the translation. Then in Illinois, Smith came up with polygamy. He is killed in jail. The Mormons then moved to Rocky Mountains (Utah and Texas). Brigham Young went to Utah. Later on, prophet/president of Utah said that time for polygamy had passed.

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ii. Reynolds v. US (1878)
1. Facts:
a. Fed. gov’t is moving into Utah and the Mormon’s tend to agree with the South so gov’t weary of Mormon’s.
i. Case allowed and don’t give them the state right to control over marriage bc it was the territory of Utah and not yet a state. Remember we said fed gov’t doesn’t handle family law but Utah is a territory and not a state at the time so all law in Utah is federal law.
b. Issue/P’s Argument: Polygamist husband being prosecuted for marriage to several women. Claims that it violates his freedom of religion which violated his rights under the Fourth Amendment. Therefore, the law outlawing polygamy is unconstitutional.
What does ct hold?

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c. Holding: The law outlawing polygamy is constitutional and doesn’t violate religious freedom. This is the controlling authority on polygamy (has not been overruled).
i. They sent all the men to prison and wouldn’t allow Mormon Church to help any women/children.

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Reynolds case.
Prof asks

2. Who does polygamy hurt?

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a. Women and children won’t complain/testify against their husbands because they like polygamy
b. The ct can’t figure out why it’s wrong but if you let it spread there would be problems!

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3. Is polygamy anti-democratic?

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Yes, SC said the opposite of democracy is patriarchal principles of polygamy. Could be also of anti-catholic or anti-Jewish (patriarchs of old testament).

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5. Where does one draw the line between church and state?
a. Uses Jefferson’s belief: (included in rationale) After passage of the 1st And, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties (no where in Jefferson) or subversive of good order.”
i. Congress can regulate practices but not beliefs when actions violate social duties.
ii. The actual Jefferson quote:

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ii. The actual Jefferson quote: “It is time enough for the rightful purposes of civil gov’t for its officers to interfere when principles break out into overt acts against peace and good order.”
1. Subversive v. overt.
2. Prof said this could be the issue that is addressed in Lawrence v. TX
b. Jefferson refers to “overt acts against peace and good order.”
i. They change what Jefferson says bc they can’t think of anything the Mormon’s are doing wrong.

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iii. Honey v. Clark (1872)
1. Facts: Post Civil War probate case involving master-slave marriage.
2. Issue: Does post-war statute legitimize, letting ex-slave inherit?
3. Holding:

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3. Holding: Yes. The marriage is legalized. We had legal interracial marriage for 3 years.
4. How long did the rule last? 3 yrs
5. Would the rule of Honey have destroyed Texas society? From the point of the view of the people living in that society…yes bc destroyed segregation, etc.

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iv. Loving v. Virginia (1967)
1. Facts: interracial marriage case. Felony conviction of interracial married couple (1 year or leave)
2. Issue: 14th Amend violation?
3. Holding:

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3. Holding: Yes

4. Constitutional Std for race-based decisions: strict scrutiny – has to be necessary to accomplish permissible state objective
5. What proof of racial bias? Racist comments of judge on record
6. What legal importance attaches to marriage?
a. Marriage is the fundamental piece of society – structure of the family is important to the structure of society.

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v. Zablocki v. Redhail (1978)
1. Facts: Redhail trying to get remarried without paying child support
2. Issue: 14th Amend violation?
Holding?
Stnd?

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3. Constitutional Std: strict scrutiny for marriage
a. “Fundamental, needs critical examination of state interest

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Zablocki cont.
4. Where is the right to marry found in the constitution?

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a. Case: Right to privacy implicit in the 14th Amd of due process
b. Have to say that it stems from a religious right
i. But doesn’t square with Reynolds (polygamy case)
c. Paulsen: the freedom to assembly – right to associate with whomever you chose – may be closer then other approaches
i. Can’t have a private marriage – look at common law marriage – having to say that you are married for it to be legal
d. Just saying can’t get marriage license is too over and under inclusive
i. Doesn’t accomplish purpose of statute

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Zablocki cont.5. Texas marriage license application still has a check box on it asking whether are up to date on child support with a provision under that states the certificate won’t be denied based on the answer.
Const?

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Proly unconstitutional

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vi. City of Sherman v. Henry (1996)
1. Facts: Henry not promoted because of affair with fellow officer’s spouse.
2. Issue/Holding: Is there a constitutional right to commit adultery?

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NO
a. They phrased the issue in a weird way to make the holding valid.
3. P argues that the basis of Chief’s decision was invalid cuz it violated his constitutionally protected privacy rights.
4. Owen – concur – who cares not a constitutional issue bc private employer has right to decide who to employ.

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5. 2 types of privacy:

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5. 2 types of privacy: 1) rt to be left alone 2) rt to do things by yourself or do things that don’t hurt other ppl.
6. This s mimicking of Bowers rationale where ct reasoned that there is no const rt to sodomy
7. Right of disclosure and the right to not answer intrusive questions. – with probable cause
8. After Lawrence the case probably has no holding on the adultery point but fine with didn’t have to hire

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vii. Lawrence v. Texas
1. Easy to ask about in an essay question. Biggest case that could influence family law.
2. Overrules Sherman and Bowers.
3. Facts—police officers responding to a break-in entered an apartment and came upon two men having sex. It was a false tip and the two guys were arrested and cited under TX criminal code for sodomy.
4. Issue—14th amendment violation?
5. Held—

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Held - Yes
6. Paulsen says that the parties in the case were probably enticed to stay in the case rather than get out of it easily because they wanted to make a point (that the statute wasn’t constitutional).

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Lawrence v. Texas
7. What basic right is involved?

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a. Liberty?
b. Right of autonomy
i. Personal dignity
c. Freedom
d. Privacy
i. Never appears in any place in the brief that indicates it is important to the case. The word private shows up several times but not as much as liberty.

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Lawrence cont
e. Liberty
i. 1st paragraph of the opinion: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition, the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom exists beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”
1. Two types of liberty

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1. Two types of liberty—spatial and transcendent
2. Doesn’t say “privacy” but says that liberty protects privacy (first sentence).
3. Important because…
ii. Last Paragraph: “Had those who drew and ratified the Due Process clause of the 5th amendment or the 14th amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
iii. Every time the words liberty and freedom comes up it seems to be an important part of the decision.

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Lawrence cont
iv. Why shift from using “privacy” to “liberty”?

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iv. Why shift from using “privacy” to “liberty”? Using the word “liberty” v. “privacy” gets you a clean slate don’t have to deal with the case law with privacy.
v. ALSO can find the term “liberty” in the Constitution (plain meaning – 14th Amd., 5th Amd., Preamble) unlike “privacy”. In the Preamble, the word liberty is part of the purpose for the Constitution—context is the “…and secure the Blessings of Liberty.”
vi. To make something criminal it has be based on something more than a MORALITY issue. – plausible public interest
1. Would be safe but changes after overruling Bowers
2. Any clear law that tries to make the person breaking the law a better person is now invalid.

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Lawrence cont

8. Why does ct. fail to give any standard?

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a. Ct. doesn’t HAVE to give a standard!
9. Intended to be a really big landmark case – would have gone with the easiest way out

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Lawrence cont

10. What difference does it making it a Due Process v. Equal Protection?

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a. Lawrence overruled every single statute pertaining to sodomy.
11. Random Analysis
a. However, under Equal Protection it would have made them a suspect class owed a higher level of protection but Due Process made it nonspecific to gays – it applies to married heterosexual couples just as gays.
b. 5/4 Decision – O’Connor concurring because she was on the ct of Bowers.
i. Paulsen – trying to clearly make an unclear point!
12. Paulsen talked about Planned Parenthood v Casey—first word and last word “liberty.” This case, has the first word as “liberty” and “freedom” as the last.
13. Texas—one of only three states in which heterosexual sodomy is not illegal.

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8. Lawrence (cont)

Stnd of review?
Issue?

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a. Maj says nothing about stnd of review
b. Maybe it’s a rational basis test.
i. Morality is not a rational basis
c. Prof said that there is no known stnd of review
d. Even the true issue is unknown (privacy or liberty)
e. Most common: rational basis plus test (really minus any arg based on morality to sustain statute)

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Lawrence cont.
f. Bowers v. Hardwick
i. Lawrence overruled Bowers
ii. A Due Process issue
iii. Being immoral is a rational basis
iv. Romer v. Evans – there are equal protection problems with

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iv. Romer v. Evans – there are equal protection problems with singling out groups like this
1. Could have easily framed as Equal protection issue
2. Wouldn’t have had to change the law or overrule Bowers

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Lawrence (cont)

Const stnds?
How expansive is the ruling?

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9. Conclusions: Paulsen
a. Constitutional Standards? Privacy/Liberty? Rational +?: “It’s just immoral” is not enough”
b. How expansive is the ruling?
i. Scalia’s List
1. Same Sex marriage

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Lawrence (cont)

c. What basic right is involved? Political scientists that may have affected decision

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i. Alexis De Tocqueville – Democracy in America – Democracy’s biggest problem? “Tyranny of the majority”
1. The thing that really keeps Americans in line is the potential for being ostracized by the majority if they don’t fall in line
ii. John Stuart Mill – On Liberty – “The sole purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”
iii. Looking at the majority: Lawrence and Morality
1. “…The question before us, however…is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal laws…”

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Lawrence (cont)

c. What basic right is involved? Political scientists that may have affected decision (cont)

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iv. Boy Scouts v. Dale
v. Thomas Jefferson Redux
1. Indistinguishable from words of John Stewart Mill
2. “The legitimate powers of gov’t extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.”
vi. Picou v. Gillum
1. Powell was deciding vote in Bowers.
2. My biggest regret was my vote in Bowers.
3. “But the impressive pedigree…”
vii. Paulsen Theory
1. Political Theory
a. Milton, Locke, etc.
i. Who were known by Jefferson who impacted the Constitution
ii. De Tocqueville was very familiar with Jefferson
iii. Mill was familiar with all these ppl and const
2. Kennedy is familiar with Mill and wrote majority opinion in Lawrence
3. If the case is that we are drawing libertarian views into constitution, Scalia is correct in most of his statements.
4. If asked about Lawrence just demonstrate knowledge
viii. Scalia on Liberty - Liberties v. liberty

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viii. Reliable Consultants v. Earle (5th Cir 2008)
1. Facts: Criminal statute prohibits sale of sexual devices
2. Issue: constitutional?
3. Held:
Why this result?

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3. Held: No, per Lawrence.
4. Std of Review: they ignore the issue
a. Just apply Lawrence
5. TX didn’t appeal. Extreme Circuit Split and TX cts didn’t follow after. Seemed to be a good candidate for Supreme Court but didn’t bc they didn’t appeal. Why?
a. Gave up in taking it further rather than taking it to S.Ct. bc if they tell them they are wrong then Texas would actually have to follow the law & SC is more conservative than 5th Circuit. Still charging people under law cuz 5th Cir isn’t precedent in TX.

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CHAPTER 2: MARRIAGE

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.

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A. Formal and Informal Marriages
3. Ways to get out of valid marriage:

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3. Ways to get out of valid marriage: annual, divorce, die.
a. Death trumps annulment or divorce if it happens first
b. Annulment is only possible before divorce.
c. If u die, u can’t get a divorce. U died a married person.

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4. Formal Marriage –
a. 2 elements:
dets for both

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a. 2 elements: License + ceremony

c. Ceremony needs someone officiating (JP) and consent by parties
d. License obtained from county clerk

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Formal marriage
e. License timing

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i. Voidable if less than 72 hours old (2.204)
1. This allows more JPs to make money officiating marriages cuz u can’t get the ceremony and license at the same place, u need to wait the 72 hours.
ii. Misdemeanor (for person performing) if more than 30 days old (2.201). This doesn’t mean marriage is invalid.
iii. License handling
1. Return to clerk’s office for recording (and possible return) within 30 days after marriage (2.207 and .204)
2. Copies or souvenir licenses possible 2.209

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Formal marriage
Does fraud, mistake or illegality in obtaining license –standing along – void the marriage?

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No

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Formal marriage
f. Who performs the ceremony:
what is required?

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i. Minister or priest – 2.202 (a)(1)
ii. Rabbi 2.202 (a)(2)
iii. “Officer of a religious organization authorized by the association” 2.202 (a)(3)
iv. Most Judges – 2.202 (a)(4)
v. Cannot discriminate and say they wont marry u 2.205
vi. Apparent authority + good faith belief enough – 2.205
vii. The only place where state & religion merge
viii. Apparent authority + good faith belief enough – 2.205

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5. Informal Marriage

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5. Informal Marriage – Basic concepts [on exam]
a. Informal marriage is a real marriage
i. Unlike some other states’ use of “common law” marriage
b. Minority rule
c. No marital property implications – expect beginning date of marriage
d. No such thing as a common law or informal divorce
i. One way in & no way out

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5. Informal Marriage

e. Consequences of Early Texas informality

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i. Before revolution in TX: Bond marriage – married by written k and have friends/family come over for BBQ – were considered valid even tho void under Mexican law

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5. Informal Marriage

f. Elements of Informal Marriage - Family Code 2.401 (most tested portion on BAR)

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i. Declaration, or
1. Eliminate some of the issues of proving
ii. Proof
1. Agreement, and thereafter
a. Agreement must come first
b. Doesn’t have to be in TX (see case law)
2. Lived together in TX as husband and wife (“cohabitation”)
3. Represented themselves out to others as married (“holding out”) in TX

iii. If no suit within 2 yrs of breakup, rebuttably presumed that there was no agreement to marry
1. VERY CAREFUL ON BAR!!! REMEMBER!
2. Means absolutely nothing!

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5. Informal Marriage – Basic concepts [on exam]


g. 2.401 Odds and Ends

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g. 2.401 Odds and Ends
i. (c) Over 18 years old
1. Added in 1997
2. No parental consent or court orders
3. Concern that minors were doing an end run around law
ii. (d) Can’t have another current spouse
1. Added in 2005
2. Same as saying can’t be a bigamist (tons of laws from 05 specifically for polygamists in el dorado)
3. Don’t we already have anti-bigamy laws?
4. LOOK at slide on what not to write on a length of time!
iii. There is NO PARTICULAR LENGTH OF TIME to establish cohabitation!

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ii. Estate of Claveria v. Claveria
1. Otha Faye dies, Patricio claiming inheritance as H by informal marriage. Otha Faye’s relatives dispute
2. Issue: Is Patricio Otha Faye’s H?
a. Held:

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a. Held: No.
b. Pat was still common law married to Carolina. It was never dissolved via death or divorce or court decree.
c. So if wifey 1 dies after ur are common law married to wifey 2. U can’t go back and make the void second marriage valid. However, as of the date the first marriage is dissolved then u can start a common law marriage.
3. Rule: Initial Presumption: Most recent marriage is considered valid
a. Strong public interest in the stability of marriage
b. Unless proof that the marriage is void.
c. It takes 2 to get married but only 1 to get divorced (jxn).

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ii. Estate of Claveria v. Claveria

4. But: Prior informal marriage to Carolina.
a. Elements of informal marriage?

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4. But: Prior informal marriage to Carolina.
a. Elements of informal marriage?
i. Agreement, and thereafter? yes
ii. Cohabitation? yes
iii. Holding out? Yes
iv. U can be informally married but not informally divorced.
b. How is divorce proved or disproved?
i. Ct has to have jurisdiction to grant divorce for it to be legal
ii. Need to do a biographical sketch of where they were from time married to present date. Either spouse could validly obtain a divorce without having the other person involved
iii. Check records for divorce decree for each spouse
c. Marriage 1 is still valid!
5. Patricio defense was that the marriage was invalid cuz Carolina had already been married at the time but it failed bc the previous marriage had been over 20 yrs since she had seen her husband – presumed dead.
6. 7 year presumption of death in TX

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iii. Winfield v. Renfro
1. Facts: Sandra claims that she is married to popular baseball player, Winfield.
2. Holding:

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2. Holding: Winfield didn’t hold himself out as married in TX.
3. Prof said that there is no clear answer.

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iv. Russell v. Russell
1. Facts: not important to case.
a. The statute tried to take out inferring Element 1 from Element 2 and Element 3.
b. Statute gives statute of limitation of 1 yr. but told it’s unconstitutional bc not equal protection of the law bc married people didn’t have that short of a statute of limitation.
2. Issue: Can agreement (Element 1) be inferred from cohabitation (Element 2) and holding out (Element 3)?
3. Holding:

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3. Holding: Yes, Can prove an agreement (Element 1) from holding out (Element 2) and cohabitation (Element 3) – circumstantial evidence!
a. Bc intuitively reasonable
b. Ct. reasoning that even if you take the statute out the logic is still there

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iv. Russell v. Russell
1. Facts: not important to case.
a. The statute tried to take out inferring Element 1 from Element 2 and Element 3.
b. Statute gives statute of limitation of 1 yr. but told it’s unconstitutional bc not equal protection of the law bc married people didn’t have that short of a statute of limitation.

4. Difference between bar and rebuttable presumption:

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4. Difference between bar and rebuttable presumption:
a. Proponent of marriage must prove existence of it. There is a presumption that ppl are not married.
b. There is never a presumption that any 2 people have an agreement to be married. A rebuttable presumption only within 2 years is just not possible bc always presumed no one is married to each other whether or not in 2 yr or more. So the whole two year rebuttable presumption is dumb cuz it doesn’t make sense and means nothing.
c. Whether there is an agreement becomes a fact issue for the jury bc proof of not being married is only

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iv. Russell v. Russell

5. Texas Pattern Jury Charged, cont.
a. What is the burden of proof?

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i. PJC200.3 Charge of the court
1. A “’Yes’ answer must be based on a preponderance of the evidence unless you are otherwise instructed.”
ii. What of the statutory 2 yrs rebuttable presumption of no agreement?
1. No pattern instruction. So Prof is right!

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v. Colburn v. State
1. Facts: Capital murder death sentence; James says Martha testimony should have been excluded bc of spousal privilege, per declaration of informal marriage
2. Issue; Does evidence (declaration) rebut presumption of informal marriage rising from declaration?
3. Holding:

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3. Holding: Yes.
4. Martha’s testimony – “I’m going to marry her…just as soon as we get around to it” shows only evid of future intent. This is not an agreement. This is an agreement to agree in the future. This has appeared on bar exam.

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vi. Conway v. Chemican
1. Facts: TX wrongful death statute permits proof of ceremonial remarriage, but excludes proof of informal remarriage. Proof of ceremonial remarriage excluded. (ex of case discriminating against informal marriage)
2. Issue: Is error harmless bc statute violates Equal Protection clause?

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2. Issue: Is error harmless bc statute violates Equal Protection clause? No
a. Rational relationship
b. The mere proof of an informal marriage could have people thinking bad things. The need for proof…
3. Is there a reason to have statute of limitation on informal marriage v. not for ceremonial marriage?
i. …
4. Spousal Privilege Updated
a. Can’t use the spousal privilege in defense to a bigamy prosecution
i. Can’t be more than one claim without admitting to bigamy
ii. Paulsen: So we can prosecute Warran Jeff for bigamy and each of his wives can be forced to testify and if they don’t charged – direct response to FLDS

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B. Void and Voidable Marriages
i. No action whatsoever is necessary to get out of a void marriage. A declaration of voidness is just a convenience to show not married
ii. Void v. Voidable

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1. Void:
a. Not married and is not a kind of marriage
b. Later validity not retroactive as to property rights
i. Property before is not community property
ii. Cases of bigamy and previous spouse dies and the current marriage becomes valid
c. Procedure: Suit to declare void – 6.307 and 6.401 (b)
d. Collateral attack possible
e. Suit not barred by death
2. Voidable
a. Married
b. Later invalidity not retroactive as to property right
c. Procedure: Suit to annul - 6.306 and .401(a)
d. Collateral attack not possible
e. Suit barred by death

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iii. Void Marriages – 4 basic kinds

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1. Consanguinity (including adopted) – Can’t marry:
a. Father, son, etc.
b. Sibling
c. Step or ex-stepchild
i. Anti-polygamy
d. Uncle or aunt
e. Nephew/Niece
f. First cousins (??)
2. Bigamy
3. Same-sex
4. Underage
iv. Consanguinity/Incest Chart

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v. Texas Marriage Age
1. Current Law:

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1. Current Law:
a. Over 18 – Can marry formally or informally – 2.101
b. Under 18 - Informal is not allowed
c. Btwn 18 - 16 Formal with Parental Consent allowed – 2.102
i. Constitutional Problems? Unlikely
d. Over age 0 Formal allowed only w/Ct. Order – 2.103
2. Judicial Overrides – almost always allowed bc one of them is pregnant and there are a lot of hassles of not being able to act as an adult. Marriage emancipates kid. Always done bc there is a serious issue at stake
3. In 2005, took away all judicial power bc of the polygamy county bc guy feared the judgeships being taken over and Warren Jeff could marry anyone
4. Become a big issue and in 2007 changed back

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vi. First Cousin Marriages
Pros / Cons

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1. Pros
a. Keep the wealth in the family
b. Genetic problems small
c. Family harmony
2. Cons
a. Genetic problems
b. Family difficulties
c. Discourages inherited wealth

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vii. Texas First Cousin Marriage
1. Can you marry your first cousin?

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a. Yes but not entirely clearly. Lie and get a license or don’t lie and marry informally. The only thing u can’t do is register ur informal marriage.

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vii. Texas First Cousin Marriage

2. Is trying to marry first cousin listed as a void marriage?
a. Not per se (6.201)
3. Ceremonial marriage?

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a. Can’t get a marriage license 2.004(b)(6)(f)
b. Lie= misdemeanor – 2.004(d)
i. But marriage/union is still valid 2.301

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vii. Texas First Cousin Marriage

4. Informal marriage?

5. Criminal sanctions?

6. Constitutional?

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4. Informal marriage?
a. Cannot register status 2.402(b)(4)(f)
b. But can informally marry 2.401(a)(2)
5. Criminal sanctions?
a. Sex with 1st cousin = felony Penal Code – 25.02(a)(6)
6. Lawrence almost definitely makes this unconstitutional

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viii. Same Sex Marriage
Does TX recognize it?
Ramifications of this?

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viii. Same Sex Marriage
1. TX doesn’t recognize
2. Challenges to prohibition of same sex marriage occur on a fed level cuz marriage is a constitutional rt
3. Charts

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ix. Past Laws that Destroyed the Family/Institution of Marriage

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ix. Past Laws that Destroyed the Family/Institution of Marriage
1. Community Property system
2. Women’s Suffrage
3. Women in Workforce/Two-Income Families
4. No-Fault Divorce
5. Unwed Fathers’ Rights

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x. Voidable Marriages
Types

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1. Under the influence
a. Lacks capacity due to alcohol or drugs
b. No voluntary cohabitation after sobering up
2. Impotency
a. Permanent impotency
b. Unknown to other spouse at marriage
c. No cohabitation after discover
d. What is impotency?
i. Inability to have intercourse
ii. Not frigidity
3. Fraud, duress, force
a. No cohabitation after release
4. Mental incapacity
a. Unable to understand or consent
i. Std of reasonable person
5. Concealed divorce
a. Only covers divorces within 30 days before marriage
b. Unknown to other spouse at marriage
c. Get from PP
6. Marriage within 72 hours after license
a. 30 statute of limitation
7. Austin case almost the same as Matter of JB. State appealed after.

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xi. Narvaez v. Maldonado (2004)
1. Facts: Bill of review challenging default divorce on the ground that “H” already had a wife
2. Issue: Does this little problem void the divorce and deprive the tc of jxn?
3. Holding:

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3. Holding: No
4. Discussion:
a. Ct has jxn to grant divorces
b. Bigamy is a defense in a trial on the merits

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1. Facts: same sex divorce case
2. Procedure: State tries to intervene, denied; seeks mandamus and interlocutory appeal (subject matter jurisdiction, special statute)
3. TC: granted divorce
a. Appealed by mandamus and accelerated appeal
i. Mandamus – supposed to be no other legal option; state trying to argue that there is no jurisdiction. If the court lacked subject matter jurisdiction then a decision would be wrong any way the case is decided. Paulsen – appeal wouldn’t be heard until after election season
4. Ct App Holding:
a. Issue: Does the TX DOMA strip district courts of jurisdiction to divorce a same-sex couple?
b. Issue 2: Does the Texas DOMA violate Equal Protection Clause?

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4. Ct App Holding:
a. Issue: Does the TX DOMA strip district courts of jurisdiction to divorce a same-sex couple? Yes
b. Issue 2: Does the Texas DOMA violate Equal Protection Clause? No
5. Paulsen filed a 50 page amicus brief discussing SMJ
6. Narvaez – there was jxn to grant a divorce but final judgment is final. Only if ct has no smj the judgment would be void. JB – can’t grant divorce cuz u would be recognizing the marriage. Divorce is a benefit/protection of marriage.

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xiii. Marckley v. Marckly
1. Underage girl has sex w/ military men. Parents force him to marry her or press charges for statutory rape.
Is this duress?
Rule

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2. No, this is not duress
3. Rule: it is never duress to threaten to do something you have a legal right to do

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xiv. Coulter v. Melady
1. Wife doesn’t say anything throughout the entire ceremony.
2. Valid Marriage?
Rule

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Yes
3. Non-consent not specifically mentioned in family code as rendering marriage void or voidable, nonetheless necessary.
4. No particular form of ceremony or set questions required.
5. Participation in license application and other formalities enough.
Nancy got got half the insurance and the kids got ¼ and the real wife (Mary) got ¼ .

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xv. Davis v. Davis
1. Facts: oil field worker drowns leaving 2 wives: Texas wife – Mary Nell and Singapore wife – Nancy
2. Issue: who get marital assets when he dies?
3. Rules:

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3. Rules:
a. Every marriage presumed valid, FC 1.101
b. Only one marriage at a time
c. Most recent presumed valid 1.102
4. Mary Nell is the real wife.
a. Divorce presumption rebutted

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5. Putative marriage doctrine:
What prop rts does a putative spouse have?

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5. Putative marriage doctrine: Nancy is this, doesn’t equal a spouse
a. Good faith belief (that you are married)
b. Status lasts as long as good faith lasts
6. What property rights does a putative spouse have?
a. Same as a business partner
i. Look at terms of partnership
1. Nancy thought she was married and he represented to her that they were married so as a business partner getting 50% bc that’s the what marriage in TX says and those were the terms of their agreement.
b. Assuming the business is a Texas marriage

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8. Is a putative spouse a spouse? What does it req? .
9. What happens if element is missing?

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8. A putative spouse is not a spouse & requires good faith.
9. Prop implications if there is no good faith belief? It depends on the legal theory used.

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C. Defining and Limiting “Marriage”
i. Update on where polygamist and FLDS
ii. State of Utah v. Holm p. 111
1. Facts: FLDS guy “marries” girl #3 underage in “covenant” ceremony.
2. Held:

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2. Held: Guilty of underage sex and bigamy by “purporting to marry” W3
a. Purporting to marry – FLDS style marriage
3. Did Rodney “marry” or “purport” to marry Ruth?
a. Dissent: Guilty of underage, but not “purporting to marry” – style bigamy. No, because “marry” means “legally” marry, and Rodney’s was just religious.

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5. Does Utah Constitution “define” marriage?
6. What is “purporting to marry?”

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5. Does Utah Constitution “define” marriage? Utah version of the Defense of Marriage Act by saying marriage is union of one man & one women. Then purporting to marry is polygamy. And if u marry a second women, then it can’t be a marriage cuz it has to be one man & one woman. Just like its not marriage to be one man and one man.
6. What is “purporting to marry?”
a. Same language as in Texas
7. Utah v. Texas language Chart of Defense of Marriage Act (DOMA)

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Texas Marriage (DOMA) Amendment

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(A) Marriage in this state shall consist only of the union of one man and one woman
(B) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

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8. Is polygamy still against the law in TX?

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Proly in worse case to fix this then ppl think. Lots of ppl think after Gay marriage then polygamy is next. Think Texas Polygamy (marriage v. celestial) v. Texas Adultery (marriage v. adultery) cuz they are basically the same thing. We would then be prohibiting conduct which is more problematic.

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iv. What “similar” arrangements are banned by Texas DOMA?

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The Covenant Marriage Problem.
1. Covenant Marriage:
a. Opt-in “super marriage”
b. Alters reqs for marriage
c. Alters grounds for divorce

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v. Natl Pride at Work v. Governor of Michigan p. 129
1. Issue: Can public employers offer domestic partner benefits?
2. Held:

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No; marriage amendment prohibits.

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vi. What is “Similar to” Marriage?

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1. Marriage is a status based in k
2. Marriage is a partnership
3. Marriage is like adoption
4. Marriage is like military enlistment
5. Marriage is like alimony
6. Marriage is like Christmas

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What is a “man” and “woman” for purposes of tx law?

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i. No definition of man or woman in Texas statutes

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D. What is a “man” and “woman”?
Littleton v. Prange
1. Christie is a transsexual (born a man and had sex change operation) and gets married. Her husband died and she’s not allowed to sue under wrongful death statute for her spouse.
Holding:

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2. According to the judge in this case, chromosomes are what determine whether you’re a man or a woman. They determine sex, which is determined at birth. But what about a birth certificate?
a. Doesn’t matter—you can get an amended birth certificate if there’s an error on your original. Pauly says that you can correct a birth cert with false information—think of adoptions- the parents can get an amended birth cert that lists the adoptive parents as the biological parents.

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What is the problem w/ sticking w/ chromosomal determinations of man or woman?

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4. Even if you have a transsexual, sticking with the chromosomal determination of man or woman, then you can have outwardly gay marriages. E.g. a woman has a sex change to a man and marries a man—physically she is a man, but chromosomally she is a woman—so the marriage would be allowed.

7. Biological characteristics aren’t enough to show b/c lots of people have genetically abnormal chromes. 1-4% are not clear XY or XX but variation on Y and Xs.
8. Paulsen – likely that where statistics say anywhere from 2.7 to 10 million people in US have variances on chromosomes would leave these people unable to marry and therefore will likely be unconstitutional
a. So a transgendered male at birth can marry a woman in TX and outwardly appear to have a same sex marriage.

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What did the legislature do about marriage/sex change issue?

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5. Ct. wants to defer to the legislature.
a. 2009 – legislature made massive amendments to procedure on how to get marriage license. Now can use proof of a ct order recognizing a sex change. Matter of public policy. Has a lot of acceptable proof but not what form trumps what.
b. 2011 – tried to take out the languages
6. Opinion – at birth the certificate shows all known facts and therefore the birth certificate has no error.

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iii. Is the putative spouse doctrine dead?

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1. Anti-gay constitutional amendment eliminates status “similar” to marriage

2. Anti-polygamy legislation codifies good faith req for “innocent” spouse in bigamous relationship

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iii. Is the putative spouse doctrine dead? cont.
State Texas Marriage (DOMA) amendment
State Texas Criminal Bigamy Marriage 25.01

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2. Texas Marriage (DOMA) Amendment
a. (b) This state or a political subdivision may not create or recognize any legal status similar to marriage.
3. Texas Criminal Bigamy Marriage §25.01
a. “it is a defense to prosecution…that the actor reasonably believed…the person whom the actor married or purported to marry…was legally eligible to be married b/c the actor’s prior marriage was void or had been dissolved by death, divorce, or annulment.
b. An actor’s belief is reasonable if that belief is substantiated by a certified copy of a death certificate or other signed document issued by a court”

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How do u establish reasonable belief for Texas Crim Bigamy Marriage?

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i. So if any reason to believe a potential spouse previously married need to ask for docs or not an innocent spouse
ii. Duty of inquiry added
iii. Possibly unintentionally did away with the putative spouse doctrine

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vii. Past Laws that Destroyed the Family (more affect on TX families)

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1. Paulsen: Same sex marriage highly over hyped, maybe 10% in same sex marriage and probably less than ½ would not get married and those that did would probably try to emulate traditional marriage. Mostly a political issue. Below are bigger changes than letting gay couples use the term marriage
2. Community Property – would create 2 headed family
3. Women’s Suffrage
4. Women in Workforce/Two-Income Family – to keep up middle class lifestyle
5. No fault divorce
6. Unwed Fathers’ Rights
7. TX Homestead Act – protection of family home against the claims of general creditors

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iii. Rights and Duties of Spouses
1. General:

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iii. Rights and Duties of Spouses
1. General: Absent statutory override, treated as single adults
2. No covertures or disabilities flowing from marriage
3. Full ability to contract between spouses, and with third parties
4. No implied agency (except possibly contract for necessaries)
5. No general tort immunity

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What movie will be on the final?

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Bernie

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iv. Burney v. Burney (2006) p. 143 (Movie: Bernie on final)
1. Facts: while divorce pending, W “forges” Hs signature to some checks, cashes
2. Issue: Is W liable to H for money?
3. Held:

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3. Held: No, bc proceeds used for “necessaries” per FC 2.501
4. Comments:
a. Very few modern cases on spousal necessaries
i. Usually, child support backup
b. If “implied agency” or “quid pro quo for coverture” analysis, theory questionable

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v. Hani v. Jimenez (2008)
1. Fact: Med mal case; H dies at home after mistaken discharge. W perhaps could have prevented death
2. Issue: Is doctor entitled to submit an issue on Ws negligence.
3. Held:

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3. Held: No. W assumed no special duties by signing discharge paper, and spousal relationship alone creates no heightened duty.
4. Note:
a. Ditto for parent-child relationship, absent statute.
b. But could lead to termination of rights.

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vi. Clayton v. Richards (2001)
1. Facts: Divorcing H sues Ws PI for invasion of privacy bc setting up and servicing bedroom video surveillance equipment
2. Issue: Assuming PI acting as W’s agent, does W have any rt to videotape that gives PI a defense?
3. Held:

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3. Held: No; marriage does not eliminate ind privacy – rule of reason.
4. Note: Fed and state law forbids interspousal wiretapping

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Do Chapter Review: Sample Texas Bar Exam Questions on p. 156

Lawrence v. Texas is proly gonna be an essay

Read other docs on stanley/saved on comp

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