FAMILY LAW Flashcards
GIFTS IN CONTEMPLATION OF MARRIAGE
Gifts conditioned on marriage must be returned if the marriage does not occur.
UPAA: PRE-MARITAL AGREEMENTS
1) Allows parties to agree on distribution of property/alimony in the event of death/divorce
2) Provisions regarding child custody and support are usually VOID
REQUIREMENTS TO ENFORCE PRE-MARITAL AGREEEMENTS
1) Signed writing
2) voluntarily entered into (no fraud/duress)
3) Full disclosure of parties’ assets or independent knowledge of them
- Only considered if terms unconscionable - Some courts: Economic provisions must be FAIR/REASONABLE
MARRIAGE REQUIREMENTS
1) License (although doesn’t invalidate)
2) Ceremony by authorized officiant
3) NO legal impediment (close relations, existing valid marriage)
4) Capacity to consent voluntarily
COMMON LAW MARRIAGE
Is marriage without a license and REQUIRES:
1) Consent to marry
2) co-habitation (time varies)
3) Hold themselves out publicly as married
states that do not recognize CL marriages will give FULL FAITH/CREDIT to valid CL marriages from other states
MARRIAGE BY ESTOPPEL
1) An equitable remedy to an invalid marriage
2) provides the innocent party who relied on the invalid marriage with support
MARITAL RELATIONSHIP: OBLIGATION TO SUPPORT
Under the DOCTRINE OF NECESSARIES, one spouse can be liable to a 3rd party for the other’s spouses costs incurred for food, clothing, health care, etc.
MARITAL RELATIONSHIP: SPOUSAL ABUSE ORDERS
1) Protects victims of domestic abuse
2) Courts can grant protective orders ex parte (w/o notice to other spouse)
TORTIOUS INTERFERENCE WITH MARRIAGE (BY 3RD PARTY): ALIENATION OF AFFECTION
Plaintiff spouse must show:
1) genuine love and affection in valid marriage
2) love and affection was alienated
3) by a 3rd party
4) Adultery NOT required
TORTIOUS INTERFERENCE WITH MARRIAGE (BY 3RD PARTY): CRIMINAL CONVERSION
Plaintiff must show:
1) valid marriage
2) adultery
ANNULMENT
Invalidates a marriage because of a legal impediment that existed at the time of the marriage
VOID MARRIAGE: DEFINITION
A void marriage is an utter nullity because it failed to meet the legal requirements for a valid marriage. NO legal action is needed
BIGAMY OR POLYGAMY
If either party has a living spouse, any subsequent marriage is void
CONSANGUINITY
Marriage between parties who are too closely related are void. This applies in MOST STATES
VOIDABLE MARRIAGE
1)Some type of effect or condition affects the consent requirement for a valid marriage
2) It is valid until declared void
3) Only the person suffering from lack of consent can attack the validity
VOIDABLE MARRIAGE - EXAMPLES
1) under age
2) inability to have sex
3) lack of capacity
4) duress/fraud
DIVORCE: JURISDICTION
1) Only one spouse needs to be domiciled in a state
2) For financial matters - PJ needed over the other spouse as well
NO FAULT DIVORCE
Allows for the dissolution of the marriage without regard to fault and must show 1 of the following:
1) Irreconcilable differences
2) Living apart for specified/continuous period (length varies)
3) Both agree they are INCOMPATIBLE
This DOES NOT mean that a party is not at fault
FAULT DIVORCE: ADULTERY
1) Prove other spouse had sex with a 3rd party - usually circumstantial
- show opportunity & inclination (propensity)
FAULT DIVORCE: WILLFUL DESERTION
Unjustified departure from marital home with no intent to return
FAULT DIVORCE: PHYSICAL OR MENTAL CRUELTY
Pattern of emotion or physical abuse
FAULT DIVORCE: HABITUAL DRUNKENNESS/ABUSE OF DRUGS
MUST be AFTER marriage has began
FAULT DIVORCE: INSANITY
another method of fault grounds for divorce
DEFENSES TO DIVORCE: NO-FAULT GROUNDS
Reconciliation ONLY
DEFENSES TO DIVORCE: COLLUSION (FAULT)
Simulating grounds for divorce to avoid valid defenses (false allegations)
DEFENSES TO DIVORCE: CONNIVANCE (FAULT)
Plaintiff consents to other’s misconduct such as allowing spouse to have sex with others