Exam Flashcards
what types of marriage regulations trigger rational basis scrutiny if challenged as unconstitutional restrictions on the right to marry?
those that are deemed reasonable regulatoins that do not significantly interfere with the deicsion to marry (licensure requirements and short waiting periods of a few days).
do incarcerated people have a fundamental right to marry?
yes
but states are allowed to place restrictions on a prisoner’s right to marry if they satisfy rational basis
may states allow minor to marry?
yes. there is wide variability across the states.
under the uniform marriage and divorce act what is the rule for minors entering marriage?
16 and 17 years olds wishing to marry can do so if they obtain parental approval or court approval. younger teens must have parental consent and court approval.
what is a ceremonial marriage?
traditional or religious ceremony
what are the requirements for obtaining a ceremonial marriage under the uniform marriage and divorce act?
Spouses must (1) obtain a marriage license and (2) hold a ceremony with a (3) properly qualified officiant.
May states require a couple to obtain a license before marrying in a ceremony and to have the license recorded following the ceremony?
yes.
normally: application for marriage license, issuance of license, holding of the marriage ceremony within 60 days, file license
what is solemnization?
the performance of a marriage ceremony. most states require both license and solemnization.
what is a proxy marriage?
one of the spouses is represented at the marriage ceremony by another person. they commonly occur when one person is deployed.
If would-be spouses believe that have satisfied the procedural requirements for a marriage, but later discover some defect are courts generally reluctant to annul the marriage?
yes. court may waive the procedural requirements.
under the Uniform Marriage and Divorce Act, may the legal representative of a party to a marriage that was mentally incapacitated seek to have the marriage invalidated?
yes, within 90 days of discovery.
what is a common law marriage?
a legal marriage that is entered into on the basis of the couple’s cohabitation, intent to be married, and presentation of themselves as married, without obtaining a marriage license or ceremonial exchange of vows. (same procedure for dissolution must be followed)
what is the putative spouse doctrine?
a person who mistakenly thought he was in a legal marriage may seek economic recovery against the other person upon the termination of the relationship.
the person seeking termination must prove:
- a good faith belief that the couple was married and
- cohabitation
it is purely a remedy in a minority of states.
what is a premarital contract/prenuptial agreement?
agreements signed by couples specifying what will happen if they divorce or one of them dies.
they are binding contracts that must be free of duress and fraud. the marriage serves as consideration.
in addition to meeting general contract requirement, to be valid a premarital agreement must be:
voluntary, informed, and not unconscionable
the UPMAA requires it to be signed by both parties.
what is the ALI approach to time requirements of a premarital contract?
if the k was executed more that 30 days prior to the marriage, it is presumed to be fair and valid
for a premarital k to be enforceable, must the parties sign it with a certain amount of time remaining before the marriage ceremony?
No, but time pressure may be evidence of involuntariness.
for the decision to enter a premarital k to be informed, what type of disclosure must the parties make about their financial assets and liabilities?
both parties must make a reasonable disclosure of their financial assets and liabilities to one another.
the disclosure does not need to be comprehensive or itemized.
constructive knowledge is sufficient
what is the difference in the way a prenuptial agreement is evaluation for fairness under the minority v. majority approach?
majority: assesses whether the K is both procedurally and substantively fair
Minority: ignores substantive fairness and assesses only whether the K is procedurally fair.
what are the requirements for proving that a prenuptial agreement’s terms are substantively unfair?
- the ks provisions are not mutual
- or the property is divided in a manner inconsistent with parties financial conditions
fairness at time the k was executed not at time of trial
what is the method for evaluating a prenuptial agreement for fairness in states that follow the ALI approach?
inquire whether the agreement was executed more than 30 days prior to the marriage. If the K was executed more than 30 days prior to the marriage, it is presumed to be fair and valid.
Under what circumstances are choice of law provisions in a premarital k enforceable?
the law will be used as long as the marriage or one of the parties has a significant relationship with that state. as long as it is not contrary to public policy.
May the parties agree in a premarital k how to divide marital property after divorce?
yes. it can also waive or affect alimony.
May the parties agree in a premarital k to interfere with the exercise of one prospective spouse’s constitutional right?
no.
may the parties agree in a premarital k to pay less child support than a court would award?
no
At common law, did a wife have a duty to support her husband?
no, a husband had a duty to financially support his wife (necessaries doctrine)
What is the legal doctrine that requires spouses to provide for each other’s financial needs, sometimes even after they separate or divorce?
the duty of support/necessaries doctrine.
Necessaries are items that are required for basic subsistence marital home, food and health care (one spouse may be required to carry the other spouse on her health insurance)
in most jurisdictions how is marital property defined?
as property acquired by either spouse from the date of marriage until the time of separation.
what is separate property?
the property held by either spouse prior to the marriage.
majority rule for equitable distribution
marital property is the only property subject to equitable distribution upon divorce.
what is the all-property methods proposed in the Uniform Marriage and Divorce Act (a few states)
allows the court to divide any property regardless of whether it would otherwise be considered separate or martial.
in most jurisdictions, does the spouse who holds title to property during a marriage own and control that property?
yes. that spouse can transfer without consent of other spouse. but it does not automatically determine who owns the property at divorce.
how do community property states treat property acquired during the marriage? (minority)
as marital property that is jointly owned by the spouses. upon divorce, most community property states set out a mandatory 50-50 division of the marital estate.
what is a marital debt?
a debt incurred for an item that could be expected to potentially benefit the marital family. its a very low standard.
May a creditor seek payment for an unpaid marital debt from marital property?
yes. the creditor may also seek payment from the separate property of the spouse who incurred the debt.
May a creditor seek payment for an unpaid debt of one of the spouses (separate debt not a marital debt)?
no
May a creditor seek payment for an unpaid necessary from marital property or from either spouses separate property?
yes
majority: creditor must first attempt to secure payment from spouse who incurred the debt
minority: both spouses are joint and severally liable.
what is a tenancy by the entirety?
a marital estate in property in which each spouse holds the entire property with a right of survivorship.
neither spouse can convey or encumber the property without the other’s consent.
if married spouses take title to real estate jointly, is the conveyance presumed to be a tenancy by the entirety?
yes
What does domestic violence within a marriage include?
it includes physical harm, sexual abuse, and putting the victim in fear of physical harm. (it also includes acts directed against the children)
will all states provide protective orders to victims of domestic violence within marriage against the abuser spouse?
yes
some options include
- prohibitions of problematic conduct
- directives not to contact the victim
-eviction of abuser from home
- financial requirements
what is an ex parte protective order?
a victim of domestic violence may seek a protective order without the abuser spouses appearance in court. it is conducted only for one party’s benefit.
they are a short term remedy lasting until the abuser is given an opportunity to appear and be heard in court.
what is the doctrine of nonintervention?
the common law principle that courts will not interfere in disputes between spouses in an intact marriage.
list 4 implied fundamental rights inferred from 14th amendment’s substantive due process and the bill of rights
the right to marry, the right to purchase and use contraception, the right to have and raise children, and the right to control a child’s education.
is there a constitutional right to abortion? is abortion a fundamental right?
no
what standard of review is abortion regulation currently subject to?
rational basis.
May a state limit access to contraception to couples who are legally married?
no it is a privacy right related to the autonomy to decide to reproduce.
what are the two marital evidentiary privileges?
(1) the spousal immunity privilege
- ensures that a person cannot be forced to testify against a spouse in a criminal case.
- only applies to active marriages
- only a witness spouse can assert the privilege
(2) the confidential marital communications privilege
- fosters healthy communications and full disclosure between spouses by protecting confidential communications made between the spouses during the marriage.
- voluntary disclosure waives the privilege but the other spouse can prevent spouse from testifying.
-can be asserted by either spouse
-only applies to words not acts
-continues after marriage is dissolved.
-applies in civil and criminal cases
Does the spousal-immunity privilege apply if the spouses were conspirators in the crime?
No
Under common law, could a spouse bring a tort claim against a third party who that spouse believed caused the end of the spouse’s marriage?
yes, its called a heart balm action.
they have been eliminated in most states.
a minority of jurisdiction allow some forms of heart balm actions like alienation of affection and criminal conversation
what is the tort of criminal conversation?
heart balm action that allows a P whose marriage ended due to adultery to bring a lawsuit against the person with whom the Ps spouse was unfaithful. (minority)
is a loss-of consortium claim a way for a spouse to recover due to a tortious interference with the marital relationship?
yes. a spouse can recover after a tortious interference with the marital relationship.
the uninjured person may recover for loss of affection, companionship, consolation, emotional support, and sexual intimacy.
what are the grounds of fault based divorce?
adultery, cruelty, and desertion
what is adultery in fault-based divorce?
requires physical sexual activity
what does cruelty include in fault-based divorce?
physical and mental cruelty
what are the less common grounds for fault based divorce?
habitual abuse of alcohol or drugs
insanity
imprisonment for a significant period of time
what are the defenses to a fault based divorce?
- collusion: sham fault
-condonation: forgiveness
-connivance: encouraging the fault
-provocation: the innocent spouse provoked the behavior
-recrimination: both spouses committed a fault
unilateral no fault divorce elements
- irreconcilable differences
- the spouses must have lived apart for a specified period of time. (180 days to a year usually)
how may irretrievable breakdown be proven under the UMDA?
serious marital discord even if the couple has not lived separately
what happens if a couple reconciles and moves back in with each other?
time limit for living apart in a no fault divorce resets
what is a dissolution of marriage?
many jurisdictions use it as synonymous with divorce.
some jurisdictions recognize it as a type of no-fault divorce in which the parties reach an agreement to end the marriage and settle all issues that normally arise during a divorce.
may a divorce case be filed in federal court under diversity jurisdiction if each party lives in a different state?
no
jurisdictional requirements for ending a marriage
court must have subject matter jurisdiction over the marriage and personal jurisdiction jurisdiction over at least one spouse.
the SMJ is redundant because if the spouse is in a given jurisdiction, then the marriage relationship itself is as well.
what is required for a court to have personal jurisdiction over at least one of the spouses, as required to have jurisdiction over ending a marriage?
at least one of the spouses must be domiciled in that state and meet the states residency requirements. (typically between ninety days and 6 months)
if a court is asked to distribute property in addition to issuing an order ending a marriage, must the court have personal jurisdiction over both spouses?
yes.
personal jurisdiction is secured if the spouse consents to jurisdiction by voluntarily appearing
waives personal jurisdiction by answering the divorce petition without rasing the defense of a lack of personal jurisdiction
is served with process under the relevant state requirements, or
has sufficient minimum contacts with the state to create jurisdiction under the state’s long-arm statute.
what if one spouse has left the state and cannot be located in terms of divorce proceedings?
some jurisdictions allow for service by publication.
must a court have persona jurisdiction over the D spouse to award alimony?
yes, under the UIFSA, if one spouse seeks alimony from a spouse who does not reside in the state, the state has personal jurisdiction over the nonresident spouse if:
- the nonresident is personally served within the state;
- the nonresident consents to jurisdiction, either by appearing or by responding without raising a challenge to personal jurisdiction; or
- if any other basis for personal jurisdiction exists
under UIFSA, does the original court that issued an alimony award retain continuing and exclusive jurisdiction over the order awarding alimony?
yes
must a court have personal jurisdiction over the D spouse in an action for child support?
yes
under UIFSA, if one parent seeks child support from a parent who does not reside in the same state, the state has personal jurisdiction over the nonresident parent if that parent:
- is personally served within the state,
- consents to jurisdiction,
- lived with the subject child in the state
- lived in the state and either provided support for the child or paid for prenatal expenses,
-engaged in sexual intercourse in the state that may have resulted in the conception of the subject child or
- listed himself in a putative father registry in the state
-the court also has personal jurisdiction if the child lives in the state due to the nonresident parent’s acts - like abuse
what is required for a state court to have personal jurisdiction over a resident of another state for modification in a child-support case?
the D must have minimum contacts with the state and have personally availed himself or herself of the states benefits and services. agreeing to let ones child live in a different state with the other parent does not constitute minimum contacts for the state to exercise personal jurisdiction over a D in a child-support modification case.
in action involving child custody, must the court have personal jurisdiction over the respondent parent?
no, under the UCCJEA, it is not required.
the UCCJEA prioritizes home state jurisdiction, meaning the state in which the child lived with a parent or someone who was acting as a parent for at least six consecutive months immediately prior to the custody action being brought.
will a valid divorce decree from one state generally be recognized by another state as valid?
yes. states must recognize valid court orders from other states under the full faith and credit clause of the US constitution.
what is a divisible divorce
where the issuing state has personal jurisdiction over only one party, that state may only enter a divorce decree, but not divide property or make other substantive financial decisions in the divorce case.
must one state give full faith and credit to another states child-support order?
yes
under what circumstances may a court in a state modify a child support order from another state?
if the new state would have jurisdiction if the order were requested as a new proceeding and
the originate state has lost continuing and exclusive jurisdiction over the original order (written consent by parents, or the parents and children no longer live there).
what types of orders are appealable in a divorce case?
final orders, not interlocutory or preliminary orders.
what property acquired during the marriage is typically considered separate property?
gifts made to one spouse, property that was acquired in exchange for separate property, property received during the marriage as the result of a lawsuit or settlement for a claim that arose before the marriage
what is a transmutation of separate property?
when a court finds that one spouse intended to make a gift of separate property to the marital union, which would make the separate property become marital property.
what is commingling of property?
if separate and marital assets are mixed in a way that makes it impossible to distinguish the separate assets from the marital assets.
in determining the equitable division of property what factors do courts consider?
-duration of the marriage
-age and health of each spouse
-ability of each spouse to support themselves including earning potential
-whether there are minor children and which spouse has custody
-what each spouse contributed to the acquisition of marital property
- the contributions o fa homemaker spouse
-whether either or both spouses have any separate assets in addition to the marital property being divided
- whether alimony is also being awarded to one spouse.
do most jurisdictions consider marital fault as a factor in determining the division of property?
No. but some jurisdictions do. economic fault will be considered (if one spouse disposed of marital assets right before the divorce)
What is the spousal-contribution factor in the division of marital property upon divorce?
the acknowledgement of intangible contributions-such as raising children and managing a household
what is alimony/maintenance?
future transfer of money from one ex-spouse to the other.
in most states is alimony considered a secondary financial remedy to property division in a divorce case?
yes. property division is the primary financial remedy
what is the basic requirement for a divorcing spouse to be eligible for alimony?
financial need.
under the UMDA, necessity is found if the spouse lacks sufficient property to meet financial needs or cannot support himself through appropriate employment or is the custodian of a child with a condition
may fault ever be considered for the determination of alimony?
yes (in some states)
the UMDA states that marital misconduct may not be considered
what are the four types of alimony
temporary alimony, rehabilitative alimony, reimbursement alimony, and permanent alimony.
when is temporary alimony awarded?
between the date of filing for divorce and the actual divorce decree.
what is reimbursement alimony?
a form of alimony that a spouse may request if she invested in the other spouse during the marriage and has not yet seen any benefits.
what is permanent alimony?
ongoing payment that only terminates upon death or remarriage.
justified when spouse is unable to foreseeably support himself or will have a significantly lower standard of living
is alimony treated as income under tax law?
yes
when does a parent’s child support obligation begin?
at birth
when does a child support obligation end?
when child reaches age of majority. unless the child is disabled or still in high school.
what do courts take into account in deviation from the presumptive child-support amount as set forth in state guidlines?
unusual expenses or child or parents, independent financial resources of the child or parental agreement to pay more than the presumptive amount
in states that follow the UMDA, is an alimony recipient spouses cohabitation with another person an independent reason to modify an alimony award?
no
May a child-support order issued by one state be enforced by another state?
yes
Under the UMDA, are the terms of a separation agreement regarding maintenance and property division binding on the court unless the court finds that the agreement is unconscionable?
yes
What is the standard for prenup validity
A prenup is presumed valid unless the party seeking the invalidation of the agreement proves that: (1) the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of a material fact; (2) the agreement is unconscionable; or (3) the facts and circumstances have changed since the agreement was executed as to make the agreement unenforceable.
What is the standard for undue durress?
To establish duress, a party must ordinarily show that
(1) it involuntarily accepted the other party’s terms,
(2) that the coercive circumstances were result of the other party’s acts,
(3) that the other party exerted pressure wrongfully, and
(4) that under the circumstances the party had no alternative but to accept the terms set out by the other party.
what is the standard for reconciliation and prenuptial agreements
prenuptial (and thus reconciliation) agreement are enforceable unless
(1) the agreement was obtained through fraud, duress, misrepresentation, or nondisclosure of material facts
(2) The agreement is unconscionable; or
(3) A change in circumstances would make enforcement unreasonable.
Standard for qualifying as a presumed parent
(1) he promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise; and
(2) must have done all that he could reasonably do under the circumstances.
Irretrievable breakdown is an available ground for divorce if
- (1) both parties acknowledge the existence of a breakdown at the time of the action and (2) one of the parties sees no possibility of reconciliation.
- Requires subjective attitude not fault
