2: Sources of Law in Family Law Practice
- Page ID
- 121688
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Family Law matters are mostly governed by State laws; however, the United States Constitution, as well as an increasing number of Federal laws, also impact this practice area. Below is a table summarizing the Wisconsin and Federal laws that impact different aspects of family law:
| Family Law Aspect | Wisconsin Laws | Federal Laws |
|---|---|---|
|
Marriage requirements |
Chapter 765, Wisconsin Statutes |
United States Constitution Due Process and Equal Protection clauses (14th Amendment) US Supreme Court cases regarding same-gender marriage |
|
Contracts impacting marriage |
Chapter 766, Wisconsin Statutes Wisconsin case law |
United States Constitution Due Process and Equal Protection clauses (14th Amendment) |
|
Marital income and Property |
Chapter 766, Wisconsin Statutes |
|
|
Termination of Marriage |
Chapter 767, Wisconsin Statutes |
|
|
Spousal Support and Property Division |
Chapter 767, Wisconsin Statutes Wisconsin case law |
Federal Tax laws Bankruptcy laws |
|
Parentage/Paternity/Surrogacy |
Chapter 767, Wisconsin Statutes Chapter 891, Wisconsin Statutes Chapter DCF 151, Wisconsin Administrative Code Chapter DCF 102, Wisconsin Administrative Code Wisconsin case law |
United States Constitution Due Process and Equal Protection clauses (14th Amendment) US Supreme Court cases regarding abortion |
|
Child Custody |
Chapter 767, Wisconsin Statutes Wisconsin case law |
United States Constitution Due Process and Equal Protection clauses (14th Amendment) |
|
Child Placement and Visitation |
Chapter 767, Wisconsin Statutes Wisconsin case law |
Parental Kidnapping Prevention Act |
|
Child Placement and Visitation |
Chapter 767, Wisconsin Statutes Wisconsin case law |
Parental Kidnapping Prevention Act |
|
Child Support |
Chapter 767, Wisconsin Statutes Chapter DCF 150, Wisconsin Administrative Code Chapter DCF 102, Wisconsin Administrative Code Chapter DCF 152, Wisconsin Administrative Code Chapter DCF 153, Wisconsin Administrative Code Wisconsin case law |
Federal laws regarding enforcement and collection of child support Uniform Interstate Family Support Act |
|
Adoption |
Chapter 48, Wisconsin Statutes |
United States Constitution Due Process and Equal Protection clauses (14th Amendment) |
|
Child Abuse and Neglect |
Chapter 48, Wisconsin Statutes |
|
|
Juvenile Justice |
Chapter 938, Wisconsin Statutes |
Subsequent chapters of this textbook will include more in-depth discussions of these laws and how they apply.
Constitutional Considerations in Family Law Matters
Family Law is one of the few State-based practice areas that often involves issues of constitutional rights. As seen above, the portions of the United States Constitution that impact Family Law are the Due Process and Equal Protection Clauses contained in the 14th Amendment. In the context of Family Law, these clauses impact rights related to marriage and children (procreation, contraception, abortion, and child-rearing).
Due Process of Law
The US Constitution provides protection by requiring both procedural due process and substantive due process. Also, different levels of protection are provided to different types of rights.
Procedural due process: Fairness in legal actions, notice requirements, opportunity to be heard
Substantive due process: Protection against arbitrary government actions – there must be a logical reason for restrictions on someone’s rights.
Fundamental rights: A right that is (1) specifically guaranteed in the US Constitution; OR (2) implicit in the concept of “ordered liberty;” OR (3) deeply rooted in our nation’s history and tradition.
Non-fundamental rights: A right that is important but does not fall into any of the three categories listed above.
The first step a court must take when a law or action is claimed to violate Due Process is to determine the nature of the right being impacted/restricted. That is, the claimed right is determined to be either Fundamental or Non-fundamental.
The type of right dictates the amount of “scrutiny” that courts must apply to laws or actions being challenged under either type of due process. The two levels of “scrutiny” applied to each type of right are:
- Strict scrutiny: restrictions on fundamental rights must be necessary or narrowly tailored to serve a compelling State interest.
- Narrowly tailored: the level of restriction must be no more than the minimum amount absolutely necessary to effectively achieve the goal of the action/law
- Compelling State interest: an interest of the “highest order” that is clearly justified by the State’s need to provide for necessities of national or community life
- Rational-basis test: restrictions on non-fundamental rights must be reasonably related to a legitimate State purpose.
- Reasonably related: the level of restriction must be logically connected to achieve the goal of the action/law, and the restriction must be reasonably likely to succeed in achieving that goal
- Legitimate State interest: any government objective the State has the authority to pursue (such as providing for public safety)
The table below summarizes Due Process concepts in Family Law:
|
Type of Right |
Family Law Example |
Level of Scrutiny |
|---|---|---|
|
Fundamental Right |
|
Strict Scrutiny (the restriction on the right must be narrowly tailored to meet a compelling State interest) |
|
Non-fundamental Right |
|
Rational-basis test (the restriction on the right must be reasonably related to a legitimate state interest) |
Equal Protection of the Law
The US Constitution requires the government to treat all groups or classes of people the same, in like circumstances. Challenges are based on claims that a law or action is treating similarly situated groups of people unequally without proper justification. Similar to Due Process, the level of protection is highest when the alleged discrimination involves a fundamental right. In addition to determining the type of right involved, an Equal Protection Clause analysis requires courts to determine the nature of the class of persons being impacted/treated differently. There are three levels of classifications of protected persons: suspect class, quasi-suspect class, and any other class.
Suspect class: A group of people classified based on their race, national origin, or place of birth
Quasi-suspect class: A group of people classified based on their gender or being born outside of marriage
Any other class: A group of people that do not meet the definition of suspect or quasi-suspect classes
As you might expect, any law or action that unequally impacts persons in a suspect class faces strict scrutiny, and a law or action that impacts “any other class” need only pass the rational-basis test. For persons in a quasi-suspect class, the law or action must pass the intermediate-scrutiny test: the classification must be substantially related to serving an important State interest.
The table below summarizes Equal Protection of the Law concepts in Family Law:
|
Type of Classification |
Family Law Example of a Violation |
Level of Scrutiny |
|---|---|---|
|
Suspect Class |
|
Strict Scrutiny (classification must be narrowly tailored to meet a compelling State interest) |
|
Quasi-suspect Class |
|
Intermediate scrutiny test (classification must be substantially related to serving an important State interest). |
|
Non-suspect or non-quasi-suspect class |
|
Rational-basis test (classification must be reasonably related to a legitimate state interest) |
How the US Constitution impacts specific issues or causes of action in Family Law practice will be discussed further in later chapters.
Interplay Between Family Law and Other Areas of Law
Although many family law matters appear “simple” and straightforward, that is not always the case. The issues that frequently arise in family law matters can sometimes implicate other areas of law. At a minimum, Family Law attorneys and paralegals must develop the ability to recognize when other areas of law are implicated and must be aware of the limits of their own competence to assist clients in these areas.
Suppose your law office represents Lia, who retained the law firm while living in Minnesota. The supervising attorney receives the following email from Lia:
After 5 years of attempting to salvage my marriage, I will be moving back to Wisconsin with my children to live as a tenant in my parents’ basement beginning on the first day of next month. I’m hoping they will help me with food and other expenses for me and my children since I have to quit my job to move, and we have a mountain of debt. My husband, Shaun, is aware I intend to file for divorce and he is not happy about it. He left a voicemail on my cellphone threatening me. Shaun told me if I file for divorce, he’ll make sure I regret it, and that I “won’t see a penny” from him or from his construction business. My three younger children are moving with me, but I have no idea where my 14-year-old son is – he’s probably with his father or with his high school friend and getting into more trouble. I need to see you ASAP.
In addition to Family Law relating to divorce, spousal support, property division, child custody, child placement, and child support, here are some other areas of law that might be implicated by this scenario:
- Bankruptcy Law, depending on the enormity of the parties’ debt
- Business/Corporate Law, particularly as it relates to ownership interests in Shaun’s business.
- Civil Procedure, as it relates to where and how an action for divorce can/must be brought, service of process, and rules of evidence, as well as enforcement of court orders
- Contract Law, as it relates to the parties’ debts, business dealings, or other agreements
- Criminal Law, as it relates to the threats or potential domestic violence or criminal non-support by Shaun
- Juvenile Law, as it relates to the whereabouts and potential criminal activity of the parties’ 14-year-old son
- Property Law in Minnesota, as it relates to any personal or real property owned by the parties in Minnesota
- Tax law, as it relates to the parties’ past and future tax returns and the impact of a divorce action/court orders for support, property division, etc.
- Tort Law, as it relates to potential claims against Shaun, or responsibility for damages caused by the parties’ 14-year-old son
Due to this myriad of potential legal issues, the attorney must take great care in a written fee agreement to specify and limit the scope of representation that will be provided to Lia. While the matter is pending, it will also be crucial for the legal team to abide by the terms of the fee agreement and to be prepared to refer Lia to other competent attorneys for assistance with matters outside the defined scope of representation.
You now have a basic understanding of the laws relating to family law matters. Next, you’ll get into the details of what is involved in getting ready to represent a client in a family law matter.