Critical Pass- Family Law Flashcards
What age limitations usually exist with regard to marriage?
Most states impose an age limitation, usually 18, before a person may legally marry. Some states allow minors to marry if there is parental consent or judicial approval.
What is the marriage limitation regarding consanguinity? What does consanguinity concern?
People who are too closely related are prohibited from marrying each other.
What is the presumption of validity regarding the general marriage prohibition on bigamy/polygamy?
No person may marry who has a prior undissolved marriage to another living spouse. Under the presumption of validity, the last of several marriages is presumed valid, which may be rebutted by evidence that the prior marriage(s) issued still persist.
How can a bigamous marriage be validated under the Uniform Marriage & Divorce Act (UMDA)?
Under the Uniform Marriage and Divorce Act, a bigamous marriage can be validated upon the removal of the impediment (ie when the prior marriage is terminated).
What two types of requirements exist for a valid marriage?
A valid marriage requires both procedural requirements and state-of-mind requirements.
What are the two usual procedural requirements for a valid marriage?
Most states require both a license and a solemnization (i.e., ceremony).
What requirements must be satisfied after a solemnization with regard to the marriage license?
The solemnization is conducted by an authorized clergy member or judicial officer. License must be completed/signed by the person who solemnized the marriage and filed with the appropriate govt. office. This created a public record of the marriage.
What is the state-of-mind requirement for marriage?
Both parties must consent to marriage, meaning they each intended to take on the obligations of marriage.
What factors are considered in determining whether parties to a marriage validly consent?
Courts will look at 1) capacity and 2) intent in evaluating consent
Common Law Marriage
In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage.
What factors establish a common law marriage?
Where recognized, a common law marriage is established by:
- Consent- exchange of consent between two people
- cohabitation; and
- holding out publicly as spouses living together- eg joint bank account, same last name, telling people they are married.
If a common law marriage is recognized in one state, must it be recognized in another state that does not have common law marriage?
Recognition — though largely abolished, if a valid common law marriage is formed under one state’s laws, it is regarded as a valid marriage in other states, even those where common law marriage is illegal
What is the purpose and effect of a premarital K?
Premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require
What are the requirements for a premarital K to be valid?
Requirements:
Writing — must be in writing to satisfy Statute of Frauds (“SoF”)
Voluntariness — must be entered into voluntarily (i.e., without fraud, duress, overreach)
Full & fair disclosure — both parties must fully and fairly disclose their financial worth
What must parties fully and fairly disclose for a premarital K to be valid?
Full and fair disclosure- both parties must fully and fairly disclose their financial wealth.
Can a premarital K be amended? If so, what consideration is required?
Amendment — may be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration
What factors determine whether and to what extent a court will enforce a premarital K?
Enforcement — courts strictly scrutinize premarital Ks
Scrutiny focuses on voluntariness and full and fair disclosure requirements, as well as whether terms are unconscionable
Whether parties were represented by legal counsel may be a factor, and is required in some states
What right to ownership and control do spouses have with regard to property acquired before and during marriage?
Before and during marriage, each spouse owns and controls their own property, but property acquired during marriage may become owned as tenancy by the entirety
What may give rise to a tenancy by the entirety?
Tenancy by the entirety — in many states, where spouses take real property jointly, a tenancy by the entirety is presumptively created
What does the obligation of support during marriage encompass?
Support — each spouse has an obligation to support the other, and one spouse may be held liable for another spouse’s purchases
How and when can one spouse be held liable for another spouse’s purchases?
I.e., under agency principles, one spouse can be held liable to third parties for purchases made by the other spouse where expressly or impliedly authorized
Necessaries doctrine — one spouse may be held liable to creditors for necessaries purchased by the other spouse
When can a spouse be held liable under the necessaries doctrine?
Food, medical care, shelter, clothing etc. One spouse may be held liable to creditor for necessaries purchased by the other.
What is an annulment? What is the effect of an annulment?
Annulment is a judicial declaration that the marriage was invalid due to some impediment at the time of marriage and, therefore, never occurred
A marriage can be annulled if it is void or voidable (a distinction that varies by state)
What are grounds for an annulment?
Grounds for annulment — considered voidable unless otherwise noted:
Bigamy or polygamy — marriage is considered void
Consanguinity — marriage is considered void
Non-age — one spouse under statutory age at the time of marriage
Incurable physical impotence — inability to have normal sexual relations
Incapacity to consent