Family Law Flashcards
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FRAUDULENT INDUCEMENT TO MARRY
If the consent of either party to a marriage was fraudulently obtained, the marriage will be void from the time its invalidity is declared by a court.
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PREMARITAL GIFTS CONDITIONED ON MARRIAGE
Under the traditional rule, a gift conditioned on marriage (e.g., the engagement ring) was returned to the donor if the donor was NOT at “fault” for the break-up. Under the modern view, such gifts are returned to the donor regardless of fault.
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CONTRACTS RESTRAINING OR PROMOTING MARRIAGE
Contracts that restrain or promote marriage are disfavored because the right to marry is a fundamental right. Complete restraints on the right to marry are invalid; however, partial restraints may be valid if they are reasonable under the circumstances.
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BIGAMOUS MARRIAGE
NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time). However, there are two marriage saving doctrines that apply to bigamous marriages:
- Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.
- Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.
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SAME-SEX MARRIAGE
The Supreme Court has determined that same-sex marriage is a constitutional right. Therefore, same- sex marriage is permitted in every state.
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INCESTUOUS MARRIAGE
Marriages determined to be incestuous (marriages between relatives) are treated as void. Jurisdictions are fairly evenly split regarding whether cousins may marry. Under the UDMA, persons may NOT marry their:
- Ancestors or descendants;
- Siblings (regardless of whether whole/half blood or adoption); OR
- Uncles, aunts, nieces, or nephews.
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UNDERAGE MARRIAGE
In nearly every state, persons must be 18 years of age to marry.
However, some states allow 16 or 17 year olds to marry with parental consent or judicial approval.
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PHYSICAL INCAPACITY AND MARRIAGE
A marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the problem at the time of solemnization.
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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).
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MARRIAGE REQUIREMENTS
A valid marriage requires that:
- The parties obtain a marriage license prior to the solemnization ceremony;
- The marriage is solemnized by a ceremony that is conducted by an authorized clergyman or judge; AND
- Both parties consent.
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COMMON LAW MARRIAGE
Most states have abolished common law marriage. In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:
- Cohabitated (i.e., lived together) for the statutory period;
- Held themselves out as married; AND
- Intended to be married.
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PREMARITAL CONTRACTS
Most states will enforce a premarital agreement as a valid contract if it is:
- In writing and signed by both parties;
- Executed after full disclosure of the property and financial obligations of both parties; AND
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Voluntary - courts will consider the following factors to determine whether an agreement was voluntary:
- The presence of independent legal counsel;
- The length of time between the agreement and the marriage;
- The sophistication of the parties; AND
- The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).
b) Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:
(1) NOT voluntary; OR
(2) Unconscionable when it was executed AND that he or she did not receive or waive fair and reasonable disclosure AND did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.
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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.
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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.
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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.
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MARITAL PROPERTY RIGHTS
Under the common law’s unity theory of marriage, the legal identity of the wife disappeared and the husband controlled virtually all of the property.
Today, both spouses retain full rights to their own property during and after marriage.
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NECESSARIES DOCTRINE
At common law, husbands were legally responsible for supporting their wives. Under the necessaries doctrine, the wife could purchase necessaries (e.g., food, clothing, shelter, etc.) on credit and charge them to her husband. The creditor who furnished the necessaries to the wife could then recover fair market value for the goods or services even though the husband did not enter into the contract.
Today, most states have modified the necessaries doctrine holding both spouses liable to creditors for necessaries purchased by the other spouse.
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ANNULMENT
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.
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RATIFICATION DEFENSE
Ratification may be a defense to an annulment action involving voidable marriages. A void marriage (e.g., bigamy or incest) can never be ratified. Generally, ratification occurs when the party seeking annulment fails to bring the annulment action within a reasonable amount of time after discovering the defect.
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DIVORCE
Every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are:
- A minimum duration of separation (usually 6 months to 1 year); AND/OR
- Irreconcilable differences.
NOTE. Some states require both a separation and irreconcilable differences, while others only require one or the other
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ANNULMENT JURISDICTION
Under the majority view, a state where either party is domiciled has jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action where only one party is appearing before the court) are allowed in the state where either party is domiciled.
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DIVORCE JURISDICTION
Under the Full Faith and Credit Clause, a divorce validly granted in one state is entitled to full faith and credit in other states. Generally, a divorce is valid and must be recognized by other states if the petitioning party:
- Was domiciled in the state that granted the divorce; AND
- Provided adequate notice of the proceeding to the other spouse.