Family Law Marriage, Prenuptial Agreements, and Divorce.

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Presentation transcript:

Family Law Marriage, Prenuptial Agreements, and Divorce

MarriageMarriage Marriage has been recognized as a fundamental right. It is both a contract and a civil status. Marriage - Marriage - a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage {Added March, 2009}Restrictions?

Marriage Restrictions Ban on Interracial Marriages (struck down in Lovings v Virginia) Equal Protection: White Purity is a legitimate government interest? Non-discriminatory because it effects both white and black people. Due Process: No fundamental right?

Marriage Restrictions Poverty License Fee - Most states uphold this so long as the fee is not exorbitant. Child Support Standing - Required to be current on your child support payments? (Struck down by Zablocki v Redhail)

Marriage Restrictions Incarceration (Prison) - Only with permission of the Warden? (Struck down by Turner v Safley) Kinship - Marriage to a family member is incest. Incest is illegal. Age - Must be “X” years old. (Contract Law) Competency - Must make a knowing contract admission. (Contract Law)

Marriage Restrictions Same Sex Marriage What are our competing jurisdictions? 50 States - Iowa, New York, California, etc... Federal Government - Defense of Marriage Act (DOMA)

Same Sex Marriage Illinois decriminalizes homosexuality. First state to do so American Psychiatric Association removes homosexuality from its list of mental disorders Wisconsin outlaws discrimination based on sexual orientation. First state to do so “Don’t ask don’t tell.” Compromise.

Same Sex Marriage Vermont (Civil Union), Stops short of using the word “Marriage.” Why? Lawrence v Texas - SCOTUS strikes down anti-sodomy laws Massachusetts, Connecticut, New Jersey (Civil Union) New York (reciprocal), California, Connecticut (Marriage)

Same Sex Marriage Iowa, New Hampshire (Marriage) District of Columbia (Marriage) New York (Marriage)

Same Sex Marriage Defense of Marriage Act (DOMA) Definition of Marriage Waiver of “Full Faith and Credit” Clause Passed by Dual Majority of a bi-partisan Congress and signed by President Bill Clinton. Obama Administration’s take on DOMA

DivorceDivorce No- Fault Divorce is a rule in every jurisdiction No- Fault Divorce is a rule in every jurisdiction Irreconcilable differences Why look at “Fault” at all? Damages Speedy Divorce

Divorce - Fault AdulteryCrueltyDesertionNeglectAddiction Conviction / Imprisonment

Prenuptial Agreement Why get a prenuptial agreement? Community Property (California) - 50/50 split regardless of fault Common Law - Who acquired it? Equitable Distribution - What is fair?