Section One: Forming Domestic Bonds

FAMILY LAW Questions & Problems One Section One: Forming Domestic Bonds Professor Coombs Spring 2010

Day 1 a. Please be prepared in class, first, to answer the question “who is in your family?” as you understand it. (I am not asking you what the law would answer, but what you would answer. Secondly, ask someone with whom you are close – this can be, but need not be a member of your family, as defined above, to answer this question as well. b. As you read the assigned materials consider to what extent the scholars and judges see the law as shaping people’s understanding of family or as reflecting understandings that derive from non-legal sources.

a. Be prepared to discuss problems 1 & 2 on p. 178. b. What interests does the state have in restricting marriage? Do marriage limits work well to further those interests? Consider in this regard the opinions in Holm (the polygamy case).

Day 3 a. Consider Problems 1 & 2 on pp. 252-53. Be prepared to present the best arguments for Renfro and for Winfield. b. If courts recognized and enforced legal obligations between cohabitants, would this erode the legitimacy and desirability of marriage? c. What should the “default” assumption be, in the absence of adequate proof of a formal contract between cohabitants, as to whether they have any legal obligations to each other? If such obligations are to be imposed in some circumstances, what facts would trigger them? Living together for a sufficient period of time? Sexual intimacy? Shared children? A legal impediment to marriage?

Be prepared to discuss the appropriateness of the ALI Principles §6.03 criteria set out below: §6.03 Determination that persons are domestic partners (1) In general, domestic partners are two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple. [The section then states that persons who “maintain a common household” for a statutorily defined period of time (somewhat shorter when they have a child in common) are presumed to be domestic partners; when the statutory period has not yet run, there is no such presumption.] (4) Persons “maintain a common household” when they share a primary residence only with each other and family members; or when, if they share a household with other unrealted persons, they act jointly, rather than as individuals, with respect to management of the household. [The section then lays out a number of specific criteria that should be considered in showing that a couple are domestic partners, though they have “shared a life together” for less than the statutory period, or to rebut the presumption that they are domestic partners when they have met the statutory period: (7) (a) the oral or written statements or promises made to one another, or representations jointly made to third parties regarding their relationship; (b) The extent to which the parties intermingled their finances; (c) the extent to which their relationship fostered the parties’ economic interdependence . . . (e) The extent to which the relationship wrought change in the life of either or both parties; (f) the extent to which the parties acknowledged responsibilities to one another, as by naming one another the beneficiary of life insurance or of a will . . (h) The emotional or physical intimacy of the parties’ relationship; (i) The parties’ community reputation as a couple; (j) The parties’ participation in some form of commitment ceremony or registration as a domestic partnership [that doesn’t in itself give rise to the marriage-like obligations to each other of the Principles] . (l) The parties’ procreation of, adoption of, or joint assumption of parental functions toward a child