Category Archives: family law

Family Law Insider Podcast

Last week I was the guest on the Family Law Insider podcast, which is produced by the Hernandez Family Law firm.  Family law is not the most frequent topic on Law and the Multiverse (perhaps unsurprisingly that honor goes to criminal law), but it has come up several times.  Thanks to Wendy Hernandez for a fun interview!

(I’ll go ahead and own up to not being as familiar with Hank Pym’s relationship with the Wasp as I should have been.  Also, I completely blanked on naming any homosexual characters, which was especially a shame in this context given the controversy over Batwoman’s (non)-wedding.)

Powers: Introduction

Powers is the ongoing police procedural comic written by Brian Michael Bendis and drawn by Michael Avon Oeming. It started in 2000 at Image Comics, one of the more significant “independent,” i.e., “non-Marvel/DC”, houses, before moving to Icon Comics, a Marvel imprint that focuses on creator-owned titles. Powers was its first title. Similar to Gotham Central, about which we’ve written before (1, 2, 3, 4), the series is divided into more-or-less discrete stories, forming the equivalent of episodes in an ongoing TV show. The stories are grouped together into “volumes” akin to seasons. Speaking of which, Powers is currently being adapted into a TV series for FX, but the network ordered a reshoot and retool after the initial 2011 pilot was finished, so while the project is still greenlit, there’s no word on an air date. This time we’re going to take care of some introductory matters and talk about the first chapter, “Who Killed Retro Girl?”, which is available in the first hardcover collection. Spoilers do follow, and will throughout this series. Continue reading

The Guardianship of Bruce Wayne

This month’s Subculture for the Cultured column discusses Alfred’s guardianship of Bruce Wayne following his parents’ death.  Check it out!

Revere: Revolution in Silver II

Earlier, we looked at some of the general legal and historical issues with Revere: Revolution in Silver. Today, we’re looking at one particular legal problem: breach of the promise to marry. In the story, a young woman finds herself arranged to be married to a young man. The match was set up by their respective families, but the man is far more interested in the marriage than the woman. After a traumatic incident, the young woman refuses to go through with it. The young man is understandably upset, but his parents are aghast. They had been counting on the woman’s family business connections, which would have stayed with her after the marriage. The man remarks that, as she’s now broken her promise to marry, he can recover her business as damages.

Is that really how it works? Previously, we’ve looked at void and voidable marriages, and interspecies marriage, but now we’re going to look specifically at the tort of breach of promise. Continue reading

I Married a Skrull!

Today’s post is about Johnny Storm (aka the Human Torch) and his marriage to Alicia Masters (actually the Skrull Lyja posing as Masters).  Ken wrote in to ask “Was Johnny Storm’s marriage to Lyja valid?”

This isn’t the only time that this scenario has occurred in comics.  Ken also asked about the marriage between Namor the Sub-Mariner and Dorma (actually Llyra in disguise).  In that case a quirk of Atlantean law came to the rescue: because Namor thought he was marrying Dorma, his marriage was to her and not Llyra, even though Dorma was not present at the ceremony.  I’m not sure what that says about the nature of consent in Atlantean law, but we’ll stick with the Johnny Storm/Lyja case, since New York law is a bit easier to research.

I. Void and Voidable Marriages

Perhaps unsurprisingly, the answer is that their marriage would be voidable.  N.Y. Domestic Relations Law § 7 states

A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: … 4. Consent[ed] to such marriage by reason of force, duress or fraud

There’s a distinction between a marriage (or other contract) that is voidable and one that is void.  A void marriage (defined in §§ 5-6) is one that never exists at all, typically in cases if incest or bigamy.  A voidable marriage is a marriage until a court declares it void, and so can theoretically remain a legitimate marriage if the parties want it to be.  So in this case if Johnny Storm and Lyja agreed that they really did love each other after all (certainly Lyja claims to), then they could stay married, though there would be a lot of paperwork to correct.

Alas, love does not conquer all here, and Johnny wants none of it.  So could he prove a case of fraud?

II. Fraud

New York law treats the kind of fraud sufficient to void a marriage as similar to that which would void a contract.  “Marriage is a civil contract, and the courts will annul such a marriage like other contracts, where the consent of a party to it has been procured by fraud or the misrepresentation of a material fact.”  Lembo v. Lembo, 193 Misc. 1055, 1057 (Sup. Ct. 1949).  Further:

Where the ground relied upon for dissolution is fraud, the fraud contemplated by the statute must be of a nature and import so serious that it destroys the essence of the marriage contract and of a magnitude that the person asserting the fraud as a ground for dissolution would not have entered the marriage contract, if, in advance thereof, the misrepresentations had been revealed.

Di Pillo v. Di Pillo, 17 Misc.2d 673, 675 (Sup. Ct. 1959).  It seems pretty clear that lying about one’s identity as an alien at war with the human race and impersonating another person already known to the other party are sufficient.  Johnny would not have married Lyja had she been honest about her identity.  Indeed, he likely would have attacked her on sight.

III. An Alternate Approach

Another approach would be to argue that the marriage was void from the beginning (as opposed to voidable) because human/Skrull marriage is not legally recognized in New York.  Our prior post about this was a bit controversial, but our conclusion there was that interspecies marriages (e.g. Clark Kent and Lois Lane) may not be legal under current law.  Since the Storm/Lyja marriage occurred in 1987, long before even same sex marriage was legalized anywhere in the United States, we feel even more comfortable asserting that a human/Skrull marriage would not be legal (again, assuming that the marriage laws on Earth 616 were the same in 1987 as they were in the real world).

IV. Conclusion

Whether because a human/Skrull marriage is legally impossible or simply because Storm was tricked into marrying Lyja, Johnny would have no trouble getting out of the marriage.  There might still be legal consequences, however.  A question for any tax attorneys or accountants in the audience: if Johnny had filed his tax return as married/filing jointly and claimed the standard deduction, would he have to repay any tax if the marriage was later declared void?  If so, could he seek compensation from Lyja?

Marriage and the Multiverse

Today’s question comes from Marcus, who pointed me to this question from James Nicoll: “Under current US law, can djinn marry humans?”  This was apparently inspired by the show I Dream of Jeannie, in which a human marries a genie.  The broader issue of inter-species marriage comes up frequently in comics, however.  For example, Clark Kent, a non-human Kryptonian, has married Lois Lane, a human.  In both cases the true nature of the participants was not public, so the issue didn’t come up directly.  But if Clark Kent had been ‘out’ as Superman or if Jeannie had been ‘out’ as a genie, would the marriage have been legally recognized?

Alas, probably not.  First, we can consider states that have laws prohibiting same-sex marriage, as they have narrowly defined marriage laws.  But even states that allow same-sex marriage do not go so far as to recognize Kryptonian/human or genie/human marriage.

Many US states prohibit same-sex marriage, either by statute or constitutional provision.  The exact language varies, but typically some variation of “one man and one woman” is used.  Precise definitions of “man” and “woman” are typically not found in state statutes, but the plain meaning of the terms is a male human and a female human, respectively.  This can be seen by reference to animal cruelty laws, which delineate humans as separate from other kinds of animals.  See, e.g., Code S.C. § 47-1-10(1) (“‘Animal’ means a living vertebrate creature except a homo sapien.”); R.S.Mo. 578.405(2)(1) (“‘Animal’ [means] every living creature, domestic or wild, but not including Homo sapiens”).

At the federal level, 1 U.S.C. § 8 defines “person” to include “every infant member of the species homo sapiens who is born alive at any stage of development.”  This is an inclusive rather than exclusive definition (and it’s not specifically about marriage), but it underscores the point that only humans are people.  The federal Defense of Marriage Act provides (for now) that “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.”  Combined with 1 U.S.C. § 8 and the plain meaning of the words, federal law also appears to only contemplate marriage between humans.

While Congress may have the power to grant legal personhood to non-human animals (see Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004)), it has not done so yet.  If non-human animals do not have standing to bring suit in court, then marriage would seem to be right out.

And non-humans could be granted legal personhood without necessarily granting them the right to marry humans.  If cetaceans or primates are ever granted personhood, for example, it is incredibly unlikely that a human could marry a dolphin or a chimpanzee.  Thus, the fact that an ‘out’ Clark Kent was allowed to become president does not necessarily mean he could legally marry Lois Lane.  The Constitution merely requires that the president be “a natural born citizen,” but there are many citizens that are prohibited from marrying who could nonetheless theoretically be elected president (e.g. someone who was mentally incapable of consenting to marriage).  It’s about as unlikely as an alien being elected president, but it’s legally possible.

A growing number of states recognize same-sex marriage, but their laws are still framed in terms of humans.  For example, Vermont’s law defines marriage as “the legally recognized union of two people.” 15 V.S.A. § 8.  Vermont further defines “person” as “any natural person” plus various kinds of legal entities such as corporations. 1 V.S.A. § 128.  So once again we can fall back on the fact that non-human animals are not (presently) persons.  See, e.g., Cetacean Community, 386 F.3d at 1175-79.

So what does this mean for Jeannie and Tony, Lois and Clark, and other cross-species couples?  For starters, their marriages are likely void, and there may also be criminal liability (e.g. fraud).  It is possible that the courts could come to the rescue here and recognize genies, Kryptonians, Tamaraneans, etc, as legal persons who have the right (perhaps under Equal Protection) to marry humans.  But given the slow progress of marriage equality between humans (Loving v. Virginia was decided in 1967; same-sex marriage is still widely prohibited), this seems like a bit of a stretch.

The Joker

We’re not talking about The Joker in general here, but rather the [amazon_link id=”1401215815″ target=”_blank” container=”” container_class=”” ]2008 graphic novel[/amazon_link] by Brian Azzarello and Lee Bermejo. It’s got two legal issues up for discussion, one major, one minor. First, there’s the issue of a specific outcome of an insanity proceeding. Second, there’s the matter of what appears to be divorce papers. We’ll discuss each in turn. Continue reading

The Uniques II: Judicial Trusts and Minors

We’re returning to our discussion of The Uniques (one, two), and this time we’re looking at a set of topics sort of implicit in the premise of the series but raised directly in a few places. Specifically, we’re looking at the way the series treats minors, both in general and in terms of inheritance. Continue reading

Harvey Birdman, Attorney At Law (Ep. 1-4)

Harvey Birdman, Attorney At Law is one of the original Adult Swim programs, similar in style and concept to the truly classic Spage Ghost Coast to Coast and produced by the same company. But instead of re-purposing old Hanna Barbera cartoons to make a surrealistic talk show, they’re re-purposing old Hanna Barbera cartoons to make a surrealistic legal sitcom of sorts.  In this post we’re talking about the first four episodes of the first season, which are available on DVD. Continue reading

Superhero Runaways

Today’s post was inspired by a question from Frank, who asks “Cloak and Dagger are teenage runaways. If they could catch them, could the police forcibly separate them, incarcerate them, remand them to their parents and/or institutionalize them as wards of the state?”

Cloak and Dagger aren’t the only examples.  There are several other runaway superheroes, including, naturally, the Runaways.

This is a pretty interesting question.  I didn’t know the first thing about the law of runaway children, so I had to do a bit of research.  I decided to focus on Cloak and Dagger, since the Runaways all fled (and ultimately defeated) parents who were supervillains, whereas Cloak and Dagger were more ordinary disaffected teenagers.  As it happens, Cloak and Dagger both ran away to New York City, so we’ll primarily look at the law of New York.  Cloak is originally from Boston, and Dagger is from Ohio, which is also relevant.

I. What Exactly are Runaways?

In New York a runaway is a “child under the age of eighteen who has run away from home without just cause.”  N.Y. Fam. Ct. Act § 718(a).  A police officer may return a runaway to the child’s parent or another legally responsible person or may take the child to a state certified facility. N.Y. Fam. Ct. Act § 718(a), (b).  This requires only the police officer’s reasonable belief that the child is a runaway.  Id.

The cases and commentaries don’t really explain what “just cause” would be, but presumably fleeing abuse, neglect, or a similarly dangerous situation would be acceptable.  Thus, the Runaways might not actually have been runaways, at least under New York law.

Cloak and Dagger don’t seem to have that excuse, however.  Cloak ran away out of guilt over the death of a friend, and Dagger ran away because she felt her mother was too busy for her.  Not great situations, but probably not enough to justify running away from home, either.

II. So Now What?

If Cloak and Dagger were determined to be runaways, they could be returned to their parents or to a state facility.  But their parents don’t live in New York.  A state government generally has no authority outside of its borders, so how could the New York authorities legally transport them back to Massachusetts and Ohio, respectively?  Enter the Interstate Compact for Juveniles.

The Compact allows the child’s home state (called the “requisitioning state”) to request the child’s return from the state the child ran away to (called the “asylum state”).  The requisition includes “the name and age of the juvenile, a determination that the juvenile has run away without consent of a parent or legal guardian, and that it is in the best interest and for the protection of the juvenile to return to the requisitioning state.” 2 Children & the Law: Rights and Obligations § 8:53.

Nearly all states have adopted the Compact, including OhioMassachusetts, and New York.  Note that the current version of the New York law is set to expire in 2013 and will be replaced with the most recent version of the Compact.  See 2011 Sess. Law News of N.Y. Ch. 29.

So, perhaps unsurprisingly, the result is that both Cloak and Dagger could be returned to their home states.  This is separate from the issue of juvenile delinquency, however, and actually involves a different age standard.  Cloak and Dagger have engaged in a fair amount of vigilantism over the years, often involving the deaths of supervillains and more ordinary criminals.  In New York, for purposes of juvenile delinquency, juveniles are generally children over the age of 7 and under the age of 16.  N.Y. Fam. Ct. Act § 301.2.  When Cloak and Dagger ran away they were 17 and 16, respectively, which means they would likely be tried as adults.  I’m not too familiar with their exploits, but from what I’ve read they could be looking at some serious jail time.

III. Conclusion

As runaways, Cloak and Dagger could either be returned to their parents in Massachusetts and Ohio or placed in a state-certified facility in New York.  But as potential criminal defendants, they would likely be tried as adults.  In any case, they would almost certainly be separated.  The only reason they might not be is that consuming the energy produced by Dagger’s superpower is quite possibly the only legal way for Cloak to stay alive.