1-8: Marriage, Divorce Flashcards
Gifts in Contemplation of Marriage
If the marriage doesn’t happen, gifts conditioned on the marriage have to be returned. like engagement ring
for a premarital contract to be enforceable, most courts require the following:
- K must be in writing and signed
- voluntarily entered
- full and fair disclosure of the parties’ assets (or independent knowledge of assets)
- under UPAA -> whether unconscionable
- some courts: whether economic provisions are fair and reasonable.
license to marry
most states require a marriage license. Some states require that each party obtain a certificate from a physician stating that the party is free from particular communicable diseases. Most states also have a waiting period between getting the license and having ceremony.
does the failure to meet procedural requirements of a license invalidate the marriage?
No.
generally to get married, the parties must:
- not be too closely related
- for example, cannot many ascendants, descendants, siblings (including half-siblings), aunt/uncle, niece/nephew
- states vary on whether first cousins can marry
- not have a prior undissolved marraige to a living spouse (bigamy)
three requirements of a valid common law marriage:
- consent to marry
- cohabitation
- couple holding themselves out publicly as spouses
The doctrine of necessaries
can be used to make one spouse libale to third parties for the other spouse’s purchases for necessary expenses, such as good, clothing and health care.
What is an annulment?
Declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable. Once an annulment decree has been entered, the parties are treated as though they were never married.
What is a void marriage?
It’s invalid because it failed to meet an essential requirement for a legal marriage. No subsequent act can ratify a void marriage.
Key examples of void marriages are those that involve:
- bigamy or polygamy
- consanguinity
What is a voidable marriage?
Valid until declared null. Because of an impediment that existed at the time of marriage one spouse MAY bring an action to annul the marriage.
What is the effect of annulment?
Means that the marriage is set aside, as if it never existed.
a no fault divorce generally requires showing of:
- bilateral no fault divorce (both agree that the marriage is broken)
- spouses have been living apart for a specified and continuous period of time (bilateral or unilateral)
- agree that they are incompatible
usual fault-based grounds:
- adultery
- willful desertion (or abandonment)
- cruelty
- drug addiction or habitual drunkenness
- insanity
the three approaches to division of property upon divorce are:
- community property
- equitable division of all property
- equitable division of marital property
typically there is a two-step process in property division:
- classification: determine what is marital property and what is separate property
- division: make an equitable division of the marital estate no matter how the property is titled.
Note: equitable division does not necessarily mean equal, property distribution decrees are not modifiable.
What is alimony?
Alimony is paid to an economically dependent spouse.
4 types of alimony:
- permanent periodic spousal support
- lump sum
- rehabilitative spousal support
- reimbursement spousal support
Which types of spousal support may be modified?
Only periodic spousal support can be changed. Permanent or rehabilitative alimony.
When can periodic spousal support be modified?
If there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.
What is a marital agreement?
A marital agreement is an agreement between spouses who intend to remain married.
To establish jurisdiction over a divorce action…
…one of the parties must be a bona fide resident of the jurisdiction where the action is brought.
Can the plaintiff’s residence alone be the basis for a state’s granting a divorce?
Yes, plaintiff’s residence along may be the basis for a state’s granting a divorce, regardless of whether there is personal jurisdiction over the defendant.
Can a court determine out-of-state property rights or rights to support if it doesn’t have jurisdiction over both parties?
Generally no.
All assets acquired during marriage are deemed marital property unless acquired through:
gift, bequest, devise, descent.
If property is acquired before the marriage but paid for after marriage with marital funds, courts will apportion the property between separate and marital interests in proportion to:
the contribution of separate and marital funds that went into paying for the property.
When a gift is given to both parties, courts will examine (to determine marital property)
donor’s intent to determine whether he intended both parties to use the gift.
Should wedding gifts be classified as marital property?
Yes, unless a particular wedding gift is only appropriate for the use of one spouse.
What is the purpose of spousal support?
To ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.
What is the recent trend regarding the effect of marital fault in alimony?
the recent trend is to award less alimony than in the past because of the number of couples where both parties have valuable skills for the workforce.
When determining what type and how much support to award, the court considers:
(i) the standard of living during the marriage;
(ii) the marriage duration,
(iii) age and physical and emotional conditions of both parties;
(iv) financial resources of each party
(v) the contribution of each party to the marriage
(vi) the time needed to obtain education or training to enable either party to find appropriate employment AND
(vii) the ability of the payor spouse to meet his needs while paying spousal support
When is permanent spousal support awarded?
To spouse who has neither the resouces nor the ability to be self-sustaining.
Must a court have personal jurisdiction over both parties to distribute assets?
Yes.
A court can’t split a couple’s property unless:
they were married or had a valid cohabitation agreement
The basic requirements to establish a common law marriage are:
capacity to enter into marriage, exchange of consent, cohabitation, holding out publicly as spouses
In determining whether there was a sufficient holding out courts look at things like:
common last name
joint bank account
telling others they consider themselves married
Contracts between unmarried cohabitants will be considered enforceable if:
sex is not the only form of consideration for K.
