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Family Law Berenson Fam Law 00 Fmt F2.Qxp 12/2/16 12:20 PM Page Ii Berenson Fam Law 00 Fmt F2.Qxp 12/2/16 12:20 PM Page Iii berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page i Family Law berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page ii berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page iii Family Law Doctrine and Practice Steve Berenson Professor of Law Director of Veterans Legal Assistance Clinic Thomas Jefferson School of Law Carolina Academic Press Durham, North Carolina berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page iv Copyright © 2017 Steve Berenson All Rights Reserved ISBN: 978-1-61163-954-4 E-ISBN: 978-1-61163-998-8 LCCN: 2016952078 Carolina Academic Press, LLC 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page v To Deanna, Michaela, and Kory — for making my family life so wonderful. berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page vi berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page vii Contents Table of Cases xxi Table of Authorities xxv Chapter 1 · Introduction 3 Chapter 2 · Premarital Controversies 7 I. Learning Outcomes 7 II. Breach of Promise to Marry 7 Gilbert v. Barkes 9 Discussion Questions 12 III. Other “Heart Balm” Actions 12 IV. Modified Breach of Promise to Marry Claims 13 Tennessee Code Annotated § 36- 3-401 14 Tennessee Code Annotated § 36- 3-404 14 Discussion Question 14 V. Does Anti- Heart Balm Legislation Bar Other Actions? 14 Gilbert v. Barkes 14 Koestler v. Pollard 15 Discussion Questions 17 VI. Gifts in Contemplation of Marriage 17 A. Engagement Rings 17 Mate v. Abrahams 18 Lindh v. Surman 19 Discussion Questions 22 B. Other Gifts Given in Contemplation of Marriage 22 California Civil Code § 1590 23 VII. Summary of the Law 23 VIII. Review Questions 23 IX. Problems 25 X. Additional Readings 27 Chapter 3 · Premarital Agreements — Validity and Enforcement 29 I. Learning Outcomes 29 II. Introduction 29 III. Case Law 29 Mulford v. Mulford 29 In re Estate of Geyer 31 vii berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page viii viii CONTENTS Discussion 34 Simeone v. Simeone 34 Discussion Questions 39 Discussion 39 A. Procedural Fairness 39 1. Insistence on a Prenup 39 2. Time of Presentation 39 3. Unequal Bargaining Power/Financial Sophistication 40 4. Review by Independent Counsel 40 5. Plain Language 40 6. Financial Disclosures 40 B. Substantive Fairness 40 IV. Statutes 41 In re Marriage of Bonds 42 Discussion Questions 46 Discussion 46 Discussion Question 46 Discussion 47 V. Summary of the Law 47 VI. Review Questions 48 VII. Problems 49 VIII. Additional Readings 51 Chapter 4 · Pre- and Post-Marital Agreements 53 I. Learning Outcomes 53 II. Premarital Agreements Continued 53 A. Formalities 53 B. Non-Economic Terms 53 Zummo v. Zummo 54 Diosdado v. Diosdado 58 Discussion Questions 60 Discussion 60 III. Sample Premarital Agreement 61 Premarital/Prenuptial Agreement 61 IV. Post-Marital Agreements 63 Matthews v. Matthews 63 Pacelli v. Pacelli 66 Discussion 69 V. Summary of the Law 70 VI. Review Questions 70 VII. Problems 71 Chapter 5 · Family Privacy — Part I 73 I. Learning Outcomes 73 II. The Evolution of Family Privacy Doctrine 73 berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page ix CONTENTS ix Meyer v. Nebraska 73 Discussion Questions 76 Pierce v. Society of Sisters 77 Discussion Questions 80 Griswold v. Connecticut 80 Discussion Questions 84 Eisenstadt v. Baird 84 Discussion Questions 86 Lawrence v. Texas 86 Discussion Questions 89 Cruzan v. Director, Missouri Department of Health 89 Discussion Questions 92 III. Summary of the Law 92 IV. Review Questions 93 V. Problems 94 Chapter 6 · Family Privacy — Part II 97 I. Learning Outcomes 97 II. Family Privacy and the Issue of Abortion 97 Roe v. Wade 97 Discussion Questions 102 Planned Parenthood of Southeastern Pennsylvania v. Casey 102 Discussion Questions 108 III. Minors and the Abortion Decision 109 Ohio Revised Code § 2151.85 109 In re Doe 111 Discussion Questions 114 IV. Emancipation 114 California Family Code § 7120 114 Bonnie P. v. Superior Court 115 Discussion Questions 119 V. Summary of the Law 119 VI. Review Questions 120 VII. Problems 121 VIII. Additional Readings 122 Chapter 7 · The Right to Marry 123 I. Learning Outcomes 123 II. Marriage under the U.S. Constitution 123 Loving v. Virginia 123 Discussion 127 Zablocki v. Redhail 128 Discussion 133 Druker v. Commissioner of Internal Revenue 134 Buck v. Stankovic 135 berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page x x CONTENTS Discussion 139 III. Marital Status Discrimination 139 Donato v. AT&T 140 IV. Summary of the Law 144 V. Review Questions 144 VI. Problems 146 Chapter 8 · Substantive Limits on the Right to Marry — Same-Sex Marriage 149 I. Learning Outcomes 149 II. Introduction 149 III. Same- Sex Marriage: The Recent Legal History 149 A. Full Faith and Credit 151 B. Federal Recognition 151 Windsor v. United States 152 IV. Questions Leading Up to the Supreme Court’s Decision in Obergefell v. Hodges 155 A. Equal Protection 155 1. Gender Classifications 155 2. Sexual Orientation Classifications 156 B. Substantive Due Process — Fundamental Right to Marry 156 V. The Decision 157 Obergefell v. Hodges 157 Discussion Questions 168 VI. Summary of the Law 168 VII. Review Questions 169 VIII. Problems 170 Chapter 9 · The Right to Marry — Other Substantive Restrictions 171 I. Learning Outcomes 171 II. Introduction 171 III. Polygamy 171 California Family Code § 2201 171 California Penal Code § 281 172 California Penal Code § 282 172 A. The Distinction between Void and Voidable Marriages 172 B. Polygamy under the Federal Constitution 173 1. Free Exercise of Religion 173 State v. Green 173 2. Due Process of Law 175 A) Lawrence v. Texas 175 State v. Holm 176 B) Zablocki v. Redhail 177 State v. Green 177 berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page xi CONTENTS xi Discussion Questions 178 C. Polygamy in Utah 179 IV. Incestuous Marriages 180 California Family Code § 2200 181 Benton v. State 181 Ghassemi v. Ghassemi 182 V. Age Restrictions 185 Moe v. Dinkins 186 Discussion 189 VI. Summary of the Law 189 VII. Review Questions 190 VIII. Problems 191 IX. Additional Readings 192 Chapter 10 · Substantive Limitations on the Right to Marry — State of Mind Restrictions 195 I. Learning Outcomes 195 II. State of Mind Restrictions 195 A. Annulment Versus Divorce 195 California Family Code § 2210 — Annulment 196 B. Annulment on Grounds of Fraud 197 In re Marriage of Yeo and Ren 197 C. Immigration Fraud 200 Lockhart v. Napolitano 201 1. Mail Order Brides 209 2. The Violence Against Women Act and Battered Immigrant Spouses 210 Seirafi- Pour v. Bahgerinassab 211 III. Summary of the Law 215 IV. Review Questions 216 V. Problems 217 VI. Additional Readings 218 Chapter 11 · Procedural Requirements in Order to Marry 219 I. Learning Outcomes 219 II. Introduction 219 III. Licensure 219 Estate of DePasse 220 Carabetta v. Carabetta 224 Discussion Questions 226 IV. Solemnization 227 In re Last Will and Testament of Blackwell 227 Ravenal v. Ravenal 231 Discussion Questions 234 Dodrill v. Dodrill 234 berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page xii xii CONTENTS Persad v. Balram 237 V. Summary of the Law 241 VI. Review Questions 241 VII. Problems 242 Appendix 1 243 Chapter 12 · Alternative Forms of Marriage 245 I. Learning Outcomes 245 II. Introduction 245 III. Common Law Marriage 245 Lewis v. Anderson 245 Discussion 251 People v. Badgett 252 Discussion 257 IV. Proxy Marriages 258 California Family Code § 420 258 V. Confidential Marriages 259 People v. Hassan 259 VI. The Putative Spouse Doctrine 264 In re Estate of Vargas 264 VII. Summary of the Law 267 VIII. Review Questions 267 IX. Problems 268 X. Additional Readings 270 Chapter 13 · Rights and Responsibilities of Marriage — Part I 271 I. Learning Outcomes 271 II. Common Law Marital Disabilities 271 In re Matter of Bradwell 272 Bradwell v. Illinois 274 Discussion Question 276 III. Dower 276 In re Estate of Miltenberger 277 Discussion Question 284 IV. Marital Property Regimes 284 V. Tenants by the Entireties 284 Canjar v. Cole 285 VI. Summary of the Law 290 VII. Review Questions 290 VIII. Problems 292 Chapter 14 · Rights and Responsibilities of Marriage — Part II 293 I. Learning Outcomes 293 II. Financial Support 293 berenson fam law 00 fmt f2.qxp 12/2/16 12:20 PM Page xiii CONTENTS xiii McGuire v. McGuire 293 Discussion Questions 299 III. The Doctrine of Necessaries 300 Southern New Hampshire Medical Center v. Hayes 300 Discussion Questions 306 IV. Fiduciary Duties 306 Schlueter v. Schlueter 307 Discussion Question 312 V. Consortium 312 McClain v. Owens- Corning Fiberglass Corp. 313 Discussion 315 VI. Summary of the Law 315 VII. Review Questions 316 VIII. Problems 317 Chapter 15 · Domestic Violence — Part I 319 I. Learning Outcomes 319 II. Domestic Violence Overview 319 Kristen Lewis & Sarah Burd- Sharps, Domestic Violence: Silence Is Its Greatest Ally 319 III. Legal Responses to Domestic Violence 321 California Penal Code § 273.5 321 California Family Code § 6320(a) 322 California Family Code § 242(a) 322 In Re Marriage of Nadkarni 322 Discussion Question 329 Discussion 329 Discussion Question 330 Town of Castle Rock v. Gonzales 330 Discussion Questions 337 Report No. 80/11 Case 12.626 Merits Jessica Lenahan (Gonzales) et al.
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