Family Law Flashcards
Controversies Arising in Anticipation of Marriage
Fraudulent Inducement to Marry
Premarital Gifts Conditioned on Marriage
Contracts Restraining or Promoting Marriage
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.
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.
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.
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:
Removal of Impediment
Presumption of Validity.
Removal of Impediment for 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.
Presumption of Validity for bigamous marriage
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.
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.
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: (1) Ancestors or descendants; (2) Siblings (regardless of whether whole/half blood or adoption); OR (3) Uncles, aunts, nieces, or nephews.
Minors and 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.
Physical Incapacity
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.
Fraudulent Marriage
A marriage is voidable for fraud if a party makes a material misrepresentation that affects the essentials of the marriage
Marriage Requirements
A valid marriage requires that:
(1) The parties obtain a marriage license prior to the solemnization ceremony;
(2) The marriage is solemnized by a ceremony that is conducted by an authorized clergyman or judge; AND
(3) Both parties consent.
define consent in terms of marriage requirements (traditional versus modern approach)
Under the traditional approach, courts will find consent if the parties participated in a valid ceremony and sought to obtain at least some of the benefits of marriage.
Under the modern approach, courts will find consent if the parties intended to take on the usual obligations of marriage (slightly higher standard).
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:
(1) Cohabitated (i.e., lived together) for the statutory period;
(2) Held themselves out as married; AND
(3) Intended to be married.
Most states will recognize a common law marriage if it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.
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 off both parties AND
voluntary (determined by factors like presence of independent legal counsel, length of time, sophistication AND presence of other pressing reasons to proceed with marriage like a pregnancy)
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.
Child Custody and Support in Premarital Contracts
Child Custody. 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. 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 (during the marriage versus after)
During the Marriage. Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy.
After the Marriage. 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 (e.g., welfare).
property rights of spouses
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.
Necessaries Doctrine
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.
Annulment definition and grounds
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, underage minors without parental consent/judicial approval and marriages prohibited by law
defense to annulment
Ratification may be a defense to an annulment action involving voidable marriages because a void marriage 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.
Divorce
Traditionally, divorce was only permitted if one party was determined to be at fault (e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony
convictions).
Today, some states have completely abolished fault as a ground for divorce; however, every state has adopted a form of no-fault divorce. Common grounds for a no-fault divorce are: minimum duration of separation (6 months to 1 year) AND irreconcilable differences
Some states require both a separation and irreconcilable differences, while others only require one or the other.
Marital Action Jurisdiction
Jurisdiction over marital actions is vested solely in the state courts (federal courts do not have subject matter jurisdiction over domestic relation matters).
annulment for 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.
jurisdiction for divorce
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 (regardless of whether that court had personal jurisdiction over the other spouse); AND provided adequate notice of the proceeding to the other spouse.
Divisible divorce
Under the concept of divisible divorce, a distinction is made between the marriage and the marital property.
A state does NOT have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant spouse.
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.
separate property
Separate property generally includes:
(a) All property acquired by either spouse BEFORE marriage;
(b) All property acquired by a spouse during marriage by gift, bequest, devise, or descent;
(c) All property either spouse acquires with the proceeds of the spouse’s separate property; AND
(d) All passive appreciation of separate property (appreciation in value due to the passage of time rather than the efforts of either spouse).
Marital property
Marital property generally includes all property acquired during marriage (regardless of who holds title) that is NOT separate property.
Active appreciation (appreciation in value due to the efforts of either spouse) of separate property is usually categorized as marital property.
are professional degrees and licenses separate or marital property?
In almost every state, professional degrees and licenses are considered separate property not subject to distribution at divorce. However, reimbursement may be available for any support provided by a spouse that contributed to the other spouse’s degree or license.
