Family Law Marriage, Prenuptial Agreements, and Divorce

Family LawFamily LawFamily LawFamily Law

Marriage, Prenuptial Agreements, and Marriage, Prenuptial Agreements, and

DivorceDivorceMarriage, Prenuptial Agreements, and Marriage, Prenuptial Agreements, and

DivorceDivorce

MarriageMarriageMarriageMarriage

Marriage has been recognized as a Marriage has been recognized as a

fundamental right. It is both a contract fundamental right. It is both a contract

and a civil status.and a civil status.

MarriageMarriage - - 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?Restrictions?

Marriage Marriage RestrictionsRestrictions


Ban on Interracial Marriages (struck down Ban on Interracial Marriages (struck down

inin Lovings v Virginia Lovings v Virginia))

Equal Protection: White Purity is a Equal Protection: White Purity is a

legitimate government interest? Non-legitimate government interest? Non-

discriminatory because it effects both discriminatory because it effects both

white and black people.white and black people.

Due Process: No fundamental right?Due Process: No fundamental right?



PovertyPoverty

License Fee - Most states uphold this so License Fee - Most states uphold this so

long as the fee is not exorbitant.long as the fee is not exorbitant.

Child Support Standing - Required to be Child Support Standing - Required to be

current on your child support payments? current on your child support payments?

(Struck down by (Struck down by Zablocki v RedhailZablocki v Redhail))



Incarceration (Prison) - Only with permission Incarceration (Prison) - Only with permission

of the Warden? (Struck down by of the Warden? (Struck down by Turner v Turner v

SafleySafley))

Kinship - Marriage to a family member is Kinship - Marriage to a family member is

incest. Incest is illegal.incest. Incest is illegal.

Age - Must be “X” years old. (Contract Law)Age - Must be “X” years old. (Contract Law)

Competency - Must make a knowing contract Competency - Must make a knowing contract

admission. (Contract Law)admission. (Contract Law)



Same Sex MarriageSame Sex Marriage

What are our competing jurisdictions?What are our competing jurisdictions?

50 States - Iowa, New York, California, 50 States - Iowa, New York, California,

etc...etc...

Federal Government - Defense of Federal Government - Defense of

Marriage Act (DOMA)Marriage Act (DOMA)

Same Sex MarriageSame Sex MarriageSame Sex MarriageSame Sex Marriage

1962 - 1962 - Illinois decriminalizes homosexuality. Illinois decriminalizes homosexuality.

First state to do so.First state to do so.

1973 - 1973 - American Psychiatric Association American Psychiatric Association

removes homosexuality from its list of mental removes homosexuality from its list of mental

disorders.disorders.

1982 - 1982 - Wisconsin outlaws discrimination based Wisconsin outlaws discrimination based

on sexual orientation. First state to do so.on sexual orientation. First state to do so.

19931993 - “Don’t ask don’t tell.” Compromise. - “Don’t ask don’t tell.” Compromise.


20002000 - Vermont (Civil Union), Stops short of - Vermont (Civil Union), Stops short of

using the word “Marriage.” Why?using the word “Marriage.” Why?

20032003 - - Lawrence v TexasLawrence v Texas - SCOTUS strikes down - SCOTUS strikes down

anti-sodomy laws.anti-sodomy laws.

2004-2006 - 2004-2006 - Massachusetts, Connecticut, New Massachusetts, Connecticut, New

Jersey (Civil Union)Jersey (Civil Union)

20082008 - New York (reciprocal), California, - New York (reciprocal), California,

Connecticut (Marriage)Connecticut (Marriage)


2009 - 2009 - Iowa, New Hampshire (Marriage)Iowa, New Hampshire (Marriage)

2010 - 2010 - District of Columbia (Marriage)District of Columbia (Marriage)

20112011 - New York (Marriage) - New York (Marriage)


1996 - 1996 - Defense of Marriage Act (DOMA)Defense of Marriage Act (DOMA)

Definition of MarriageDefinition of Marriage

Waiver of “Full Faith and Credit” ClauseWaiver of “Full Faith and Credit” Clause

Passed by Dual Majority of a bi-partisan Passed by Dual Majority of a bi-partisan

Congress and signed by President Bill Congress and signed by President Bill

Clinton.Clinton.

Obama Administration’s take on DOMAObama Administration’s take on DOMA

DivorceDivorceDivorceDivorce

No- Fault Divorce is a rule in every No- Fault Divorce is a rule in every

jurisdictionjurisdiction

Irreconcilable differencesIrreconcilable differences

Why look at “Fault” at all?Why look at “Fault” at all?

DamagesDamages

Speedy DivorceSpeedy Divorce

Divorce - FaultDivorce - FaultDivorce - FaultDivorce - Fault

AdulteryAdultery

CrueltyCruelty

DesertionDesertion

NeglectNeglect

AddictionAddiction

Conviction / ImprisonmentConviction / Imprisonment

Prenuptial Prenuptial AgreementAgreementPrenuptial Prenuptial AgreementAgreement

Why get a prenuptial agreement?Why get a prenuptial agreement?

Community Property (California) - 50/50 Community Property (California) - 50/50

split regardless of faultsplit regardless of fault

Common Law - Who acquired it?Common Law - Who acquired it?

Equitable Distribution - What is fair?Equitable Distribution - What is fair?

Documents

Family Law Marriage, Prenuptial Agreements, and Divorce