1-8: Marriage, Divorce

Question 1

Gifts in Contemplation of Marriage

Answer 1

If the marriage doesn’t happen, gifts conditioned on the marriage have to be returned. like engagement ring

Question 2

for a premarital contract to be enforceable, most courts require the following:

Answer 2

• 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.

Question 3

license to marry

Answer 3

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.

Question 4

does the failure to meet procedural requirements of a license invalidate the marriage?

Answer 4

No.

Question 5

generally to get married, the parties must:

Answer 5

• 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)

Question 6

three requirements of a valid common law marriage:

Answer 6

• consent to marry
• cohabitation
• couple holding themselves out publicly as spouses

Question 7

The doctrine of necessaries

Answer 7

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.

Question 8

What is an annulment?

Answer 8

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.

Question 9

What is a void marriage?

Answer 9

It’s invalid because it failed to meet an essential requirement for a legal marriage. No subsequent act can ratify a void marriage.

Question 10

Key examples of void marriages are those that involve:

Answer 10

• bigamy or polygamy
• consanguinity

Question 11

What is a voidable marriage?

Answer 11

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.

Question 12

What is the effect of annulment?

Answer 12

Means that the marriage is set aside, as if it never existed.

Question 13

a no fault divorce generally requires showing of:

Answer 13

• 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

Question 14

usual fault-based grounds:

Answer 14

• adultery
• willful desertion (or abandonment)
• cruelty
• drug addiction or habitual drunkenness
• insanity

Question 15

the three approaches to division of property upon divorce are:

Answer 15

• community property
• equitable division of all property
• equitable division of marital property

Question 16

typically there is a two-step process in property division:

Answer 16

1. classification: determine what is marital property and what is separate property
2. 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.

Question 17

What is alimony?

Answer 17

Alimony is paid to an economically dependent spouse.

Question 18

4 types of alimony:

Answer 18

• permanent periodic spousal support
• lump sum
• rehabilitative spousal support
• reimbursement spousal support

Question 19

Which types of spousal support may be modified?

Answer 19

Only periodic spousal support can be changed. Permanent or rehabilitative alimony.

Question 20

When can periodic spousal support be modified?

Answer 20

If there is a substantial change in circumstances regarding the needs of the recipient spouse or the ability of the payor spouse to pay.

Question 21

What is a marital agreement?

Answer 21

A marital agreement is an agreement between spouses who intend to remain married.

Question 22

To establish jurisdiction over a divorce action…

Answer 22

…one of the parties must be a bona fide resident of the jurisdiction where the action is brought.

Question 23

Can the plaintiff’s residence alone be the basis for a state’s granting a divorce?

Answer 23

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.

Question 24

Can a court determine out-of-state property rights or rights to support if it doesn’t have jurisdiction over both parties?

Answer 24

Generally no.

Question 25

All assets acquired during marriage are deemed marital property unless acquired through:

Answer 25

gift, bequest, devise, descent.

Question 26

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:

Answer 26

the contribution of separate and marital funds that went into paying for the property.

Question 27

When a gift is given to both parties, courts will examine (to determine marital property)

Answer 27

donor’s intent to determine whether he intended both parties to use the gift.

Question 28

Should wedding gifts be classified as marital property?

Answer 28

Yes, unless a particular wedding gift is only appropriate for the use of one spouse.

Question 29

What is the purpose of spousal support?

Answer 29

To ensure an adequate income stream for the spouse whose economic dependency has resulted, at least in part, from the marital relationship.

Question 30

What is the recent trend regarding the effect of marital fault in alimony?

Answer 30

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.

Question 31

When determining what type and how much support to award, the court considers:

Answer 31

(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

Question 32

When is permanent spousal support awarded?

Answer 32

To spouse who has neither the resouces nor the ability to be self-sustaining.

Question 33

Must a court have personal jurisdiction over both parties to distribute assets?

Answer 33

Yes.

Question 34

A court can’t split a couple’s property unless:

Answer 34

they were married or had a valid cohabitation agreement

Question 35

The basic requirements to establish a common law marriage are:

Answer 35

capacity to enter into marriage, exchange of consent, cohabitation, holding out publicly as spouses

Question 36

In determining whether there was a sufficient holding out courts look at things like:

Answer 36

common last name
joint bank account
telling others they consider themselves married

Question 37

Contracts between unmarried cohabitants will be considered enforceable if:

Answer 37

sex is not the only form of consideration for K.