Family Law

Definition of Marriage

Marriage has traditionally been defined as the union of a man and a woman into a legally recognized family unit in which the husband and wife have special legal rights and obligations.

In states such as Pennsylvania, where the marriage statute does not actually define marriage, the courts have relied on common-law cases and standard dictionary definitions in order to conclude that marriage is "the legal union of one man and one woman as husband and wife."

Same-Sex Marriages

Several significant cases involving the legality of same-sex marriages have recently been decided by state courts. These decisions include:

Baeher v. Lewin (Hawaii)
Baker v. Vermont (Vermont)


Public commitment to each other


Inheritance rights and child custody situations.
Employee benefits and government benefits for spouses.

Baeher v. Lewin (Hawaii, 1993)

This case involved a challenge to traditional marriage laws in the state of Hawaii.

In 1993 that stateís highest court ruled that:

Same-sex couples did not have a liberty or privacy interest in being able to legally marry, but

The Hawaiian marriage statute discriminated on basis of sex in violation of the Art. I Sec. 5 of the Hawaii constitution ["(n)o person denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestery."]

On remand (Dec. 1996), a lower state court entered judgment in favor of the plaintiffs ruling that the marriage statement was unconstitutional.

Following this decision, (April, 1997) the state legislature proposed an a constitutional amendment (that was approved by the general electorate in Nov. 1998) that gave the legislature the power to reserve marriage to opposite-sex couples.

In light of this action, the Hawaiian Supreme Court upheld the a statute limiting marriage to a man and a woman in a second Baehr v. Miike decision on Dec. 9, 1999.

Baker v.Vermont (Vt. S.Ct. 1999)

FACTS: This is a Civil case in which the plaintiffs (Baker, et al) are three same‑sex couples who have lived together in committed relationships for periods ranging from four to twenty‑five years. Defendants are the State of Vermont, the Towns of Milton and Shelburne, and the City of South Burlington. The defendants refused to issue the plaintiffs marriage licenses. Plaintiffs claim this refusal violated the marriage statutes and the Vermont Constitution and seek declaratory judgment to that effect.


Does the Vermont marriage statute prohibit same-sex couples from being married? YES (5-0)

Does the Vermont marriage statute violate the Common Benefits Clause of the Vermont Constitution? YES (4-1)

REASONING: Statutory Interpretation Marriage statute doesnít authorize gay marriages. There is no doubt that the plain and ordinary meaning of "marriage" is the union of one man and one woman as husband and wife. Although the Legislature had undoubtedly not even considered same‑sex unions when the law was enacted in 1945, the interpretation they are using is consistent with the "general intent and spirit" of the original drafters.

REASONING: Constitutional Interpretation

Vermont S.Ct. did not to treat the marriage statute as sex discrimination.

Both men and women are treated the same with respect to their right to marry. There is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct.

However, a decision not to treat discrimination based on sexual orientation as sex discrimination, doesnít mean that this type of discrimination might not still violate the equal protection clause or some aspect of the state of Vermontís constitution.

REASONING: Constitutional Interpretation

Under Article 7 of Vermont constitution, legislative classifications must "reasonably relate to a legitimate public purpose." Vermontís marriage statute fails this test in that it isnít reasonably related to:

linking procreation and child rearing
safeguarding interests of children

other recent gay friendly legislation shows Vermont has adopted public policy against discrimination based on sexual orientation.


Court reversed trial court judgment and retained jurisdiction pending legislative action.


Vermont legislature then passed "civil union" statute providing procedure for same-sex couples to register their union with the state and then receive public benefits equal to those given to married couples.

The Defense of Marriage Act

In response to this decision in Hawaii, Congress passed the Defense of Marriage Act in 1996.

The act is designed to define and "protect the institution of marriage."

Although authority over marriage is delegated to the states, this act was passed to prevent states that opposed same-sex marriages from having to legally recognize such marriages when they were performed in another state.


"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."


"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

Impact of Vermont Civil Unions

During the first year of its existence, 2,258 Civil Unions were recorded in Vermont.

In prior years the state averaged about 6,000 marriages per year.

Only 463 of them involved Vermont couples.

None of the 1,795 non-Vermont couples took up permanent residence in Vermont.

Many found that even though their home state didnít recognize the union, doctors, hospitals, and some insurance companies did.

Civil Unions in Other States

Similar "civil union" laws were introduced in Rhode Island, Connecticut, New York, Massachusetts, California and Washington, but none passed.

However, some state and local governments and some private corporations have extended "family benefits" to "life partners" of gay and lesbian employees.

The Alliance for Marriage is pushing for a US Constitutional amendment that would prohibit same-sex marriages.

Consequences of Marriage

Under our common-law traditions marriage was viewed as a contract in which a man and woman relinquished their former independence to merge themselves into a new joint enterprise. For example,

married persons have a legal obligation to support each other not only during the marriage but often even after a divorce.

Property purchased by one spouse may be seen as marital property, in which both have rights.

Through a legal right known as a forced share, each of the married partners is given a statutory right to inherit from the other, even if the other spouse seeks to prevent it.

One spouse may also be immune from being sued by the other spouse for torts committed against the first spouse.

If a spouse is injured, the other spouse may recover loss of consortium damages.

Marriage partners normally qualify for employer and governmental benefits not available to nonmarried couples. They also have the right to be taxed as a marital unit.

Both partners generally may not be forced to testify against each other.

Types of Marriages

Solemnized Marriage

One in which:

the couple has obtained the proper marriage license from a local government official and

has then taken marriage vows before either a recognized member of the clergy or a judge and a designated number of witnesses (usually two).

Common-Law Marriage

One in which:

the parties have mutually agreed to enter into a relationship in which they accept all the duties and responsibilities that correspond to those of a marital relationship and

have openly cohabitated together but have never obtained a marriage license or had marriage solemnized by authorized party.

Most states no longer recognize the validity of such common-law marriages unless the couple established their common-law marital relationship in one of the few states that still formally recognize common-law marriages and then moved into the state.

Marriage Requirements

Being members of the opposite sex,

Must be over a minimum age (usually eighteen),

Minors of a certain age are often allowed to marry if they have the consent of their parents or guardians.

Must not be too closely related by blood to their spouses, and

Must be "of sound mind" (i.e., mentally capable of giving consent).

While a requirement for some sort of health certificate or blood test for sexually transmitted diseases was becoming less common, with the increased public concern over AIDS the pendulum may be swinging back toward more premarital testing requirements.

Premarital Agreements

Also known as prenuptial or antenuptial agreements

Basic purpose is to set forth the financial arrangements should one of the parties die or the marriage end in divorce.

Premarital agreements are becoming especially common in situations involving second marriages in which the spouses have children from a previous marriage.

Traditionally, the courts saw such agreements as encouraging divorce, and therefore they found such contracts to be void as against public policy. Today, however, most courts will enforce these agreements if the standard contract requirements were met.

to satisfy the statute of frauds, premarital agreements must be in writing.

As in all contracts there must be an offer, an acceptance, and consideration. Usually, the agreement to marry satisfies the consideration requirement.

Although courts will generally enforce reasonable provisions relating to the distribution of property, they will not enforce provisions relating to third parties, such as those dealing with child custody.

Normal contract defenses are also available. For example, if the agreement was not based on full disclosure of all financial assets or was the result of undue influence, the courts might see it as against public policy and either modify its provisions or refuse to enforce it.

Consequences of Broken Engagements

Under common law the victim of a broken engagement could sue for an array of tort and contractual damages for mental and emotional suffering, damage to reputation, humiliation, embarrassment, and even "loss of worldly advantage."

However, most states have adopted "anti-heart-balm" statutes, which prohibit lawsuits for such things as breach of a promise of marriage, alienation of affection, and seduction of a person over the legal age of consent.

Aronow v. Silver Page 551 provides an example of a case dealing with broken engagement.

Termination of the Marital Relationship


An annulment proceeding has the effect of rescinding the marriage and returning the parties to the status they had before the marriage took place.

Therefore, if an annulment is granted, it is, from the legal perspective, as if the marriage had never taken place.

Because the marriage never existed, normally there are no continuing matrimonial obligations, such as a duty to pay support or attorney's fees.


Divorce (or disillusionment as its now called in Illinois) ends but does not erase the existence of the marital relationship.

Although the parties are no longer married to each other, it does not necessarily cancel legal obligations that arose out of the marriage.

Void and Voidable Marriages

A void marriage, like a void contract is a legal nullity, even without court intervention.

A marriage would be void if it involved incest or bigamy.

A voidable marriage, like a voidable contract remains valid unless one of the parties takes steps to void it through legal proceedings.

The grounds for voiding a marriage that are typically listed in state statutes include such things as the following:

lack of capacity to consent to the marriage

Lack of physical capacity to consummate the marriage, and the other party did not know of the incapacity.

One of the parties was under the prescribed age for marriage and did not have a parent's or guardian's consent.

The parties are too closely related to each other.

One of the parties was induced to enter into the marriage by force, duress, or fraud.

No-Fault Divorce

Modern trend toward "no fault" divorce.

Rather than having to assess blame for the breakup, either party can end the marriage, with or without the consent of the partner.

Either spouse can simply file a petition for dissolution. The parties merely must allege that the marriage has suffered an irretrievable breakdown, with no hope for reconciliation.

In some states the parties must also allege that they are living separate and apart.

Consequences of Divorce

State gains the power to make major life decisions for them. State courts can oversee a divorced family's financial arrangements in ways not permitted for intact families.

e.g. requiring parents to pay for child's college education.

Money that may have been insufficient to maintain one household is now being asked to maintain two homes.

Divorcing parents loose some degree of contact with their children. Have to make special arrangement to pick up and drop off children for visits.

Court Orders

Temporary Restraining Order

A Court order of limited duration designed to maintain the status quo pending further court action at later date.

Usually deal with child custody; child and spousal support; who remains in the house and who leaves; liability for home mortgages, car payments, and credit card bills; and orders protecting existing joint assets

Protection Order

Issued in domestiv violence and abuse cases to keep one spuse away from the other, the children or the home.

Property Settlements

Marital Property

Property that is subject to court distribution upon termination of the marriage.

Community Property State

A state that classifies all property acquired by either spouse during the marriage--except gifts and inheritance--as marital property and requires equal distribution of that property at time of the divorce.

In non-community property states, courts follow the doctrine of equitable distribution.

They award a "marital interest" in any property that was acquired during the marriage through the efforts of both spouses.

In making distribution the judge is supposed to consider the length of the marriage, the age and health of the spouses, and their ability to make a living.

While this process may also result in a 50/50 division, under the theory of equitable distribution such an equal split is not mandated.

Alimony/Maintenance Agreements

The primary rationale for alimony was that the divorced wife needed continued support from the former husband because she either lacked the skills and/or experience to support herself after the divorce or should not be expected to have to go to work outside the home.

In its 1979 decision in Orr v. Orr the U.S. Supreme Court ruled that gender-based alimony violated the equal protection clause of the 14th Amendment and that the court must decide solely on the basis of the educational backgrounds and job opportunities of both spouses.

In determining alimony the court looks to many of the same factors that are used in equitable property division. Also, the court may take into account the lifestyle to which the parties have become accustomed.

The trend in recent years has been to award rehabilitative or limited-term support rather than a permanent alimony for an indefinite time period. In many cases the nonworking spouse will be given support for a specific amount of time to return to school and re-establish job skills.

Custody of Children

Physical custody covers where the child will live and who will supervise the child's day-to-day activities.

Legal custody relates to who will have authority to make legal decisions for the child relating to such things as health care and education.

If one party to the divorce is given sole custody, that parent has both physical and legal custody of the child until either the child reaches the age of majority or the court decides that it is in the best interests of the child to change this custody arrangement.

The trend today is toward joint legal custody, regardless of who has physical custody.

Joint legal custody allows both parents to have an equal say in making major decisions for example, decisions regarding the education of the child.

When parents live in different states, they often have split custody, whereby one parent has both physical and legal custody during the school year and then the other parent gets both physical and legal custody during designated vacation periods.


Normally, when physical custody is given to one parent, the non-custodial parent is given visitation rights and ordered to pay support.

However, the right to visit is not tied directly to the obligation to support. Therefore, if the custodial parent wrongfully denies the other parent access to the children, that does not relieve the non-custodial parent of the obligation to provide support. Likewise, if the support payments are late, that does not give the custodial parent the right to deny visitation.

Custody & Visitation Rights of Unwed Fathers

An unwed father who has not participated in the rearing of his child or given any financial support is not entitled to a hearing before his child can be adopted by the stepfather.

However, if an unwed father has demonstrated a full commitment to parental responsibilities, then his desire for personal contact with his child will acquire substantial protection under the due process clause of the Fourteenth Amendment.

Visitation Rights of Grandparents

Traditionally, grandparents had no legal rights to visitation.

In recent years, however, the courts have been more willing to grant visitation rights if the children are no longer living in an intact home with both parents and if it can be shown to be in the best interests of the children.

In Troxel v. Granville (1999) the U.S. Supreme Court was asked to rule on the constitutionality of a Washington state statute that allowed any third party to petition for visitation if it was in the "best interests" of the child.

The Supreme Court held that the Constitution protects the interest of parents in the care, custody, and control of their children and that the Washington statute unconstitutionally infringed on that right.

Although Toxel invalidated the Washington statute, it limited its decision to the specifics of that statute and declined to address the validity of the statutes enacted by the other forty-nine states.

Therefore, because the Court did not lay down any clear guidelines, we should expect to see a great deal of litigation in which parents challenge the validity of the other state statutes that grant grandparents and others the right to petition for visitation.

Visitation of Stepparents

When divorced parents remarry, their children often form very strong "parental" bonds with the new stepparent. However, if stepparents do not take the necessary steps to adopt the child of the new spouse, they may have no visitation rights if they divorce or their spouse dies.

In Titchenal v. Dexter a Vermont court held that even though a woman was a "de facto parent" to a child she had raised with her lesbian partner, she had no visitation rights.

Gay and Lesbian Partners

Traditionally, a homosexual parent had difficulty being awarded custody, as the court often thought that the parent's choice of lifestyle would have a bad influence on the child.

In more recent times some courts have held that, absent evidence that the child is being harmed, a parent's sexual orientation should not be a significant factor in custody cases.

This is issue in local case recently written up in Sunday Pantagraph.

Child Support

The level of child support awarded requires a careful balancing of such factors as the parents' income and standard of living, the child's age, and the child's health and educational needs.

The courts retain jurisdiction over this aspect of the divorce decree and often modify the support order based on changes in a parent's job status or remarriage.

Every state has guidelines to help the courts determine how much the child support payments should be. Exhibit 16-2 shows the 1999 guidelines for Massachusetts.

The problem of "deadbeat dads" has been widely publicized in recent years and has resulted in significant legislation at both the state and the national levels.

In most states the custodial parent can attach the wages of the delinquent parent. Through a process called garnishment a court can require an employer to withhold money from an employee's wages and turn this money over to the party to which a debt is owed.

Illinois is among those states that assist in the collection of child support by requiring that the payments be made directly to the local clerk of the court.

If the parent with a child support obligation moves to another state, two uniform laws come into play: the Uniform Reciprocal Enforcement of Support Act (URESA), adopted by all fifty states, and the Uniform Interstate Family Support Act (UIFSA), adopted by approximately half the states. Both allow an order for support issued in one state to be enforced in another state.

Establishing Parent-Child Relationship

Usually self-reported at birth

Presumption that father was motherís husband when she has a husband.

Paternity actions


Agency Adoption

Independent/Private Adoption

Release/termination of parental rights

"Baby Richard" case

Access to adoption records


Child Neglect and Abuse

What constitutes abuse?

"Hot lines" for reporting abuse and neglect

What happens after abuse is reported?

What kind of evidence do you need?

What actions does Court take?