Fambam Flashcards
gifts i ncontemplation of marriage
gifts confitioned on the subsequent marriage, like engagement rings, are nll if marriage faisl to take place
- consider the type of tproeprty given, the conditions attached, and the intent of the donot
Antentuptual (premarital agreementS)
- Uniform Premarital Agereements Act
- death or divorce
- can agree ro disposition of property at divroce and to alimont. Waiver of alimont will ebe upheld unless doing so will cause disafcantaged spouse to become a puclic charge
- cnanot be bound by provisions re: children
- general fiairness and wehther represented is considered
- can agree to which state law will aply, if not, most significant relaitonship or where agreemtn was executed
Validity - in writing and signed -entered into volutnarily - full dislosyre of assets or proof party haf infependent knowledgr - unconscionable? -
Marriage requirements
- license
- ceremont with authorized officient
- no legal imprediments
- capacity to cosnent
License
some states require medical ceretificate
most states provide 72 hour waitingperod after applciaiton before ceremony can take place
legal impediments to marriage
- too closely related
- cannot amrry ascendents, desdenfants, siblinges, aunt/uncle, niece/nephew, whether whole or half blood
- mant states probhbnit marriages beween those related by marriage, steprelations or afoption
- marriage between 1st cousins permitted in some states - already married to someone else
- of the same gender- hahahaha
- capacity to concent
- mental ability at time of ceremong : conside under the infleunce of alc or drugs or mentally handicapped
- age: afe pf majority; parental consent (16+) or judicial consent (under 16)
Common Law Marriage
requiremnetS: consent to marriage (capacity and no legal impedimentS) ; cohabitation; holding self out to public as husband and wife
Marriage by estoppel/putative marriage
equitable remedy may be fiven by soem courts to the innocent party who acted in good gaith when entering an inalud marraige
- putatitve spose can acuire rights of a legal spouse
Proeprty in marriage
each spose owns and ocntrols his or her own peroperty bu in event of divorce, title will not spoistitce in the euitabel division of proepty
if own in tenancy by entireties, presumed one psouse cannot convey or encumber proeptyy withotu consent of the other spouse
Doctrien of necesaries
can be used to make one spouse liable to 3P for the other spouses’s purchases for nexxary expenses such as ood, clothing ,and health care
- creditor can come after other spouse
Protective order
can be granted ex parte and can last for oen mont hto several years depedngin on jurisdiction
Tortious Interference wiht Marriage
Aleinatioin fo affection
Criminat Conversation
alienation of affection
against 3P mistress
ReQ:1. genuien love and aggeciton beween spouses who are calidlt married
- loce and affection was alienated and destroyed
- defendant’s act caused the loss of love and affect
adultery not rew.
poof of damage is rew and highlit subjective
Ceiminal onversation
the mattiage of sposes and adultert breween def and spose during mattiage
- damages same as alienation claim
anulment
declaration that marriage is invalid
void marriage
fail to meet essential requirements
can be attahed b one of partied or colalterally by 3P
mat or may nor be remedied by continued habitation after removal of impediment
ex: bigomy, 2. too cosely related
vodiable marriage
ecent or conrisiont affetinf adewacy of consent to marriage cotact
treated as calid until annulledcan be attached only by or on behalf od a aprt yo the marriafe and in some cases onyl by party who is soudht to be protected
marraige can eb rarified by contined cohabitation after remocal of indirmity
ex: unfderag,e duress, fraud, lack of capacirt
Effect of annulemnt
marriage set aside as if never existed children remain lefitimae child uppoert can be awatrded spousal support may be awatded property treate as if never mattied
Divorce jurisdiction
one spouses msut be domiciled - min period then there is a persumpthing tht domiciled. To determine dfinancial issues, court must have PJ over both aprties
groudns for dicorce- no fault
irreconcilable difference
livign spearate and apart for a specidied time
incomatibiltiy
note: still married during this time
fault based divorce
adultery - procid by circumstantial evidence of opportuyinty and inclination; corroboration of adultery is often required
desertion for a specidied time; unjustifiable depratute from marital home with no intent to return (note, leaibg because abused is justifiable)
cruelty
habitual drunkenness or abuse of drugs commencing after marriage
insanity
Defenses to divorce
collusion - parties agreed to sumulate the frounds fot divorce
connivance- P willingle consented to the other spouses’s misocodnuct
condemnation - P forgave marital offense wiht full knowlege of the offense (generallt reuires sex after forgiveness)
crecrimination P also guitly of marital ffailt : doctirne of unclean hands
LEgal separation
parties still married byut can seek to ave rights regating properttm spousal support, child custodt and child support decided
Property division
communtiy property
equitable dicision of all
equitable dicision of marital propert
two step process in proeprty division
classificaiton - mrital or separate
division 0 make an equitable diision of marital estate no matter how property is titles
important: ewuitabel diision does not necesarily mean equal
separat peoperty
owned us poser before marriage including indicidual retirement accounrs
acquired by gift including inheritance
in exchange for peroperty acwuried before the marriage
income from an apprecialcion of separate property
pain and suffering awards, vistim of crime conmmpeanation, future medical expenses ,a nd future lsot wages
property acwuired by a sposie after an order of legal separation where the court has made a dinal disposition of property
marital proeprty
all propert during marriage up to final divorce decree
includes laie of vested an unvester pension, stock option rights, retirement or other fringe benefire rights relation to emplotment that ccrued uring that periodo f marriage
includes recover in PO
Commingling
separat propert can become mariteal if propert is comingled
reanfsmution
speatate proeprty an becoem marieal based on intent of pro[erty
improvemet of sepatae property
improved by se pd ,arrota;e fimdes pr effpres pf lnon-owning sposed then wil lrand marial estate reimberusement for calue affed
but, if enither spose ever cisited and property increased calued becgthen woudl remain sepata
Pension
consired amrital property; names on each will no matter
professional licaense or degree
not consiedere marital property
to avoid unfairness, some juri nconsider ir when awarding alimont
tax consequences
property division is not a tacable event
4 types of alimont
permanent periodic, lump sum, rehabitative support, reimbursement
incoem shares approach
child suppot cosnideres the numebr of children adn the income of the parents to determine a base line of child support
