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Family Law

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Family Law

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  1. Family Law • Engagement Ring Disputes • Marriage • Child custody

  2. Do you have to give the ring back?

  3. Traditional Gift Law • Gift: irrevocable if the donor intended a gift, the donor delivered the gift, and the donee accepted, taking dominion and control over the gift • Conditional Gift: gift will however be revocable upon a finding that there was an express or implied condition, and that condition did not occur.

  4. Express Condition • “Will you Marry me? If you do I will give you this ring.”

  5. Is there an implied condition? • Yes – condition is engagement • Yes – condition is marriage • No

  6. When deciding who gets to keep the engagement ring, courts also do not agree on whether it should matter who did the breaking up or why

  7. Fault Based Approach:Courts That Do Consider the Reasons for the Breakup • The majority of courts follow this approach • Rationale 1: Some courts use the fault based approach because it is fair to take away a ring from a party who has wronged the other. In one case guy proposes, asks for ring back, proposes again and then again asks for ring back. She refuses and he goes over to her house while she is asleep and beets her until he has the ring back. • Rationale 2: Some courts applying a fault-based rule consider the exchange of the ring to be more like a contract than a conditional gift: The ring is just a symbol of the agreement to marry. If that agreement is not performed, then those involved should be restored to their former positions and the ring should be returned to the person who first had it. But if the donor backs out, the donee should keep the ring, because a person who breaches contracts should not be rewarded for doing so. Spinnell v. Quigley, 785 P.2d 1149 (1990).

  8. No-Fault Approach:Courts That Don't Consider the Reasons for the Breakup • The Modern trend: • Rationale 1: The whole matter of who broke up with whom isn't any of their business. If the wedding's off, they say, the donor should get the ring back, regardless of why, where, when, or at whose behest the engagement ended. After all, they reason, no-fault divorce makes it possible for marriages to end without bitter court fights over whose fault it was; engagements should be treated the same way. Supreme Court of Pennsylvania -the donor should always get the ring back if the engagement is broken off, regardless of who broke it off or why. Lindh v. Surman, 742 A.2d 643 (Pa. 1999). • Iowa, Kansas, New Jersey, New Mexico, New York, and Wisconsin have the same rule. • Rationale 2: the difficulties of implementing a fault-based approach: [S]hould courts be asked to determine which of the following grounds for breaking an engagement is fault or justified?

  9. How would the courts determine fault when. . . • (1) The parties have nothing in common; • (2) one party cannot stand prospective in-laws; • (3) a minor child of one of the parties is hostile to and will not accept the other party; • (4) an adult child of one of the parties will not accept the other party; • (5) the parties' pets do not get along; • (6) a party was too hasty in proposing or accepting the proposal; • (7) the engagement was a rebound situation which is now regretted; • (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences.Heiman v. Parrish, 942 P.2d 631, 637 (Kan. 1997).

  10. Hypo/You be the judge. . . • Is it a conditional Gift or an unconditional Gift? • If you say it is a conditional gift what is the condition that must be satisfied before the ring is hers? • Would you adopt the fault based approach or a no-fault approach

  11. Marriage • Procedural requirements • Substantive requirements

  12. Procedural requirements • Consent by both parties • Solemnization (the wedding) and licensing

  13. Substantive Requirements Race Age Sex Familial Ties

  14. Race: Loving v. Virginia (1967) • THE CASE: • Mildred Jeter (a woman of African and Rappahannock Indian descent) and Richard Perry Loving (a white man), were married in June of 1958 in the District of Columbia. Together they left their home state of Virginia to evade the Racial Integrity Act, a law banning marriages between inter-racial couples. When they returned to Virginia, they were charged with violation of this ban.

  15. Requisite Age in Oregon • You must be 18 years old to get married without a parent's permission. • You can get married at age 17 if: • 1) you have written permission from a parent or guardian, or • 2) neither of your parents lives in Oregon and you have lived here for six months in the county where you are applying for the marriage license. • You cannot get married if you are under 17, even if you have a child or have a court order emancipating you (declaring you an adult for certain purposes).

  16. Sex: The Defense of Marriage Act of 1996 • it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex “marriage." • it defines the words “marriage” and “spouse” for the purpose of Federal law. • Marriage= the legal union of a man and a woman as husband and wife, • Spouse= a husband or wife of the opposite sex.

  17. Familial Ties • What is the rationale behind not allowing family members to marry each other • Should you be able to marry your 1st cousin? 2nd cousin? • What if your cousin was adopted? • What should be the result if you do?

  18. Custody Disputes: Biological Parent v. Non-Biological Parent Argument 1: Sometimes a non-biological caregiver can be a “psychological parent” and have the same rights Argument 2: States follow one of these three approaches: 1)Any fit parent gets custody 2) Rebuttable presumption that parent gets custody 3) Whoever is in the child's best interest gets custody

  19. What Rule Does Oregon Follow? • Case Study • Hypo