Bar Exam Review Flashcards
Marriage Requirements
Capacity
Ceremony
Marriage License
What’s Capacity?
Consent
Minimum Age
Bigamy
Incest
Non-Intoxication
Void Marriage
Invalid from inception; Marriage offends a strong public policy
Ex: Fraudulent inducement to marry
Voidable Marriage
Valid until a court declares it invalid; State (3rd Party) may void marriage if it offends a lesser public policy
Additionally, a spouse may ratify the marriage by continuing to cohabitate with spouse after innocent party learns of the defect/impediment
FRAUDULENT MARRIAGE
A marriage is voidable for fraud if a
party makes a material
misrepresentation that affects the
essentials of the marriage (e.g.,
concealing impotency, concealing a
pregnancy by another, lying about
religious beliefs).
Other Impediments to Marriage
Mental Capacity (must not know at time of marriage for it to be voidable)
Fraud
Duress
Common Law Marriage
- Capacity
- Present agreement
- Cohabitation
- Holding out as a husband & wife (implied or explicit)
ALL elements must be met in a jurisdiction that recognizes CLM
Common Law Marriage Rule of Lex Loci
A marriage valid in the state where the ceremony was performed is valid anywhere.
PREMARITAL CONTRACTS
Most states will enforce a premarital agreement as a valid contract if it is:
1. In writing and signed by both parties;
2. Executed after full disclosure of the property and financial obligations of
both parties; AND
3. Voluntary - courts will consider the following factors to determine
whether an agreement was voluntary:
a. The presence of independent legal counsel;
b. The length of time between the agreement and the marriage;
c. The sophistication of the parties; AND
d. The presence of other pressing reasons to proceed with the marriage
(e.g., a pregnancy).
Putative Marriage
Protects a spouse who has a good faith belief in the validity of the marriage; Despite existence of an impediment
Types of Fault-Based Divorce
Adultery
Cruelty (physical or mental)
Abandonment (actual or constructive) *typically requires 1 year
ALL forms require proof
Types of No-Fault Divorce
Irreconcilable Differences -
discord or conflict that destroys the legitimate ends of marriage, and there is no reasonable expectation of reconciliation
Living Separate - at least 3 years
Defenses to Divorce
Recrimination (both at fault)
Condonation (forgivness)
Adultery (unclean hands)
Collusion (both parties agreeing to fraud the court)
In Rem Divorce
an adjudication of status not property
Even if there is no personal jurisdiction over respondent, court may grant divorce; may NOT grant child support or property division
Basics of Spousal Support
essentially a settlement agreement
factors considered: financial resources of the spouse seeking support, time necessary to get employment, quality of life during the marriage, duration of marriage, etc…
Court must approve the final agreement
Child Support & Duration
Both parents are responsible for the support of their marital children
Generally until Child reaches age of majority or is emancipated; longer if the child is disabled
Physical Custody
where the children reside, day to day decisions
Legal Custody
Major health, educational, decisions
CHILD CUSTODY IN PREMARITAL
CONTRACTS
Most courts decide custody
according to the best interests of
the child at the time of the custody
hearing, regardless of any premarital
agreements.
CHILD SUPPORT IN PREMARITAL
CONTRACTS
Parents have an absolute obligation to support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.
SPOUSAL SUPPORT IN
PREMARITAL CONTRACTS
Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy. In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy. Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support.
SPOUSAL SUPPORT ELIGIBILITY
Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:
- Lacks property sufficient for his or her reasonable needs and is unable to support himself through appropriate gainful employment; OR
- Is the custodian of a child such that it would be inappropriate for him to work.
ANNULMENT
is a judicial declaration that a marriage never existed and was invalid from when the parties entered into it. A marriage can be annulled if it is void or voidable. Common grounds for an annulment include:
- Lack of capacity to consent at the time of the marriage;
- Lack of capacity to physically consummate the marriage by
sexual intercourse; - Underage minors without parental consent or judicial
approval; AND - Marriages prohibited by law.
PROPERTY DIVISION AT DIVORCE
At divorce, courts divide marital property between spouses pursuant to state law. Some states follow the
community property approach; however, most states have adopted the equitable distribution approach for division of property at divorce. The analysis is relatively similar under both approaches:
- Categorize the property as separate or marital; THEN
- Determine an equitable distribution of the marital
property between the spouses.
