Family Law - Stein - Spring 2004

Family Law - Stein - Spring 2004 - Family...

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Family Law Outline I. Introduction “Why Marriage?” a. What is a Family? i. Definition b A group of individuals related by blood, marriage or adoption . Not everyone is this group has to be related in the same way— Mom and Dad are related by marriage and Mom and Junior are related by blood and if Tommy is the adopted brother of Junior—they are related by adoption ii. There are problems with this definition b Do we want to count a child who is not living with his parents, a part of the same family? iii. Who are we from the outside (the state) to decide who is in a family— “who” is your family—and if it is something that shifts on the “function” the definition is both under inclusive (does not include people whose union is not recognized, children of that union, etc.) and over inclusive (kids run away, divorce) iv. The definition does have the virtue of providing a clear demarcation of what a family is for certain purposes v. What is special about family that requires the state to carve out an area of law? 1. Family law is a matter for the state 2. Families are more local entities 3. Family law is thought to be a kind of law that might benefit from experimentation—states can experiment with broader or narrower definitions a. Federal government will step in and try to create a floor about the recognition of child support payments, of restrictions on race of those who marry, or the equal rights of men and women in marriage b. Reasons People get Married Today i. Love ii. Commitment iii. Religion iv. Money v. Children vi. Legal Benefits vii. Social Recognition viii. Citizenship ix. Security c. Union Continuum i. Covenant Marriage b Marriage b Common Law Marriage b Civil Union b NJ Domestic Partnership b VT reciprocal beneficiaries b Domestic Partnership 1. What does Domestic Partnership get you? a. In NY b You get something, but very little b. Some places b it is just a registry—name on a list and a piece of paper c. NJ b you get a lot of benefits—joint responsibility for each other expenses, and in order to end this union you have to have a formal dissolution d. Goodridge v. Department of Health (MA 2003)
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i. This case signals the 3 rd change in Family law in the past 100 years— Changes: 1. Women’s role in a marriage (1890-1960) b women were chattel and the marriage was seen as one entity—which was the husband 2. Divorce (Late 1960s-1990s) b shift from fault divorce to no-fault divorce. You used to have to prove that you were wronged by your spouse in order to get a divorce—and wherever that fault laid—meant you lost (in $, custody, etc.). In the late 1960s and 1970s we saw this idea disappearing. Now in every state there is no-fault divorce—the state is no longer interested in why or how your marriage broke up 3. Opening up of Marriage to Same-sex couples (2003) b change in how we think about marriage, our concept of what is marriage for, and what is the state’s role in marriage ii. Facts b lesbian couple went to get a marriage license and the town clerk
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This note was uploaded on 02/14/2008 for the course LAW 7711 taught by Professor Staff during the Spring '02 term at Yeshiva.

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Family Law - Stein - Spring 2004 - Family...

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