02. Family Law

Question 1

What is marriage?

Answer 1

A civil contract between two people:
- Capacity
- Consent
- Consideration (mutual exchange of promises + imposition of the rights and obligations that come with the marriage relationship)

NOTE: Can only be terminated or modified with state intervention

Question 2

What does a ceremonial marriage require?

Answer 2

1) License
2) Solemnization

Question 3

What are the age restrictions on marriage?

Answer 3

• Most states require both parties to be at least 18 years old
• Most jurisdictions allow parents to consent if younger
• All jurisdictions impose minimum age requirements

Question 4

What are the requirements for a marriage license?

Answer 4

1) Age
2) Waiting period
3) Premarital medical testing (some states; results can’t be a condition for issuing the license)
4) Expiration (usually 10-30 days after issuance)

Question 5

When will a marriage license NOT be issued?

Answer 5

1) Already married
2) Related (too closely)
3) Sham
4) Lack understanding (incapable or lack consent due to fraud or duress)

Question 6

How do you solemnize a marriage?

Answer 6

1) 2 witnesses (most states)
2) Officiant (most states)
3) Marriage license filed

NOTE: Some states allow for proxy marriage

Question 7

What are the requirements for common-law marriage?

Answer 7

1) Capacity to marry
2) Consent
3) Cohabitation (no minimum time period)
4) Conduct

REMEMBER: The 4 C’s

Question 8

What are the three ways a valid marriage can be terminated?

Answer 8

1) Annulment
2) Divorce
3) Death

Question 9

What is an annulment?

Answer 9

A judicial decree that voids a marriage (usually when the marriage was void from the beginning)

Question 10

What is the difference between a void and voidable marriage?

Answer 10

• Void Marriage: “As if it never happened””; does not require judicial decree; will not be legally recognized for any purpose; any party may seek an annulment for a void marriage
• Voidable Marriage: Valid until one of the parties seeks annulment; requires a judicial decree

Question 11

What are 3 things that void a marriage?

Answer 11

1) A prior existing marriage (i.e., bigamy) –> second marriage is void
2) Incest –> void because parties are too closely related by blood or marriage
3) Mental Incapacity –> must be lucid & able to understand

Question 12

What happens if there is a prior existing marriage?

Answer 12

The second marriage will be void

Question 13

Who bears the burden when trying to prove a prior existing marriage?

Answer 13

The person who is trying to prove the first marriage.

Question 14

How may a second marriage become valid if there is a prior existing marriage?

Answer 14

If the impediment is removed (some states)

Question 15

What effect does incest have on marriage?

Answer 15

Voids the marriage because the parties are too closely related by blood (consanguinity) or by marriage (affinity)

Question 16

What are the common restrictions on marriage with regard to cosanguinity?

Answer 16

• First cousins = barred in 1/2 of states
• Half-blood = barred in most states
• Adoption = barred in many states

Question 17

What mental capacity is required for a marriage to be valid?

Answer 17

• Lucid = must by lucid for the moment of the marriage contract
• Comprehend = must by able to understand the duties and the responsibilities to which they are engaging

Question 18

T or F: Temporary insanity would lead to a void marriage

Answer 18

True

Question 19

What are the 5 things that lead to a voidable marriage?

Answer 19

1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent

Question 20

How may a marriage be voidable due to age?

Answer 20

• Minor = Any party who is under the age of marriage consent and who did not seek their parents’ consent can ask for an annulment
• Parent = The parent of the minor child can also seek an annulment

Question 21

What happens if an underage party in a marriage reaches the age of maturity?

Answer 21

If they continue to cohabitate with their spouse, they can no longer seek an annulment

Question 22

When is impotence grounds for a voidable marriage?

Answer 22

When one party is naturally and incurably impotent

Question 23

When is impotence NOT grounds for a voidable marriage?

Answer 23

When the other party knew about the impotence prior to the marriage

Question 24

When is intoxication grounds for a voidable marriage?

Answer 24

When either party was incapable of contracting due to alcohol or drugs

Question 24

When is intoxication NOT grounds for a voidable marriage?

Answer 24

When the parties continue to cohabitate after the marriage (i.e., ratification)

Question 25

How does fraud, misrepresentation, duress, coercion, or force lead to a voidable marriage?

Answer 25

When the fraud:
1) Goes to the essence of the marriage; AND
2) Existed at the time of the marriage (i.e., cannot be about future facts)

Question 26

What is needed to sustain a voidable marriage once fraud is discovered?

Answer 26

The parties must immediately cease living together

Question 27

What are examples of insufficient grounds for creating a voidable marriage due to fraud?

Answer 27

• Spouse lied about wealth
• Spouse has poor morals
• Spouse has bad habits
• Spouse has bad temper