Family Law Flashcards
Bigamy
if person marries more than one person at a time, only first is valid.
BUT equity doctrine provides a strong presumption that most recent marriage was valid.
Bigamy Defenses
- mistaken belief that first spouse was dead or
- good faith belief the previous marriage was dissolved
Bigamy: Uniform Marriage and Divorce Act
parties to prohibited marriage who cohabit after removal of impediment are lawfully married as of date of removal of impediment
Ceremonial Marriage - Procedural Requirements
- license
- solemnization
Ceremonial Marriage: License
persons intending to marry must obtain a marriage license from a county / parish official.
Most states require they swear oath and state no impediments
many states have waiting period between issuance of license and marriage but judge can excuse for good cause
a few jurisdictions require the parties to get blood tests and have a physician attest they are free of communicable diseases
Ceremonial Marriage: Solemnization
persons who performed ceremony must sign marriage license and return to clerk’s office. But failure to do this does not invalidate unless parties did not comply because they did not want to marry.
some states allow marriage by proxy (need to authorize in writing)
in some states, good-faith effort to comply with procedural requirements will be considered complete performance
minority of states require strict compliance with statutory formalities
Ceremonial Marriage: State of Mind Requirements
both parties must have:
- mental capacity to enter marriage and
- voluntarily intend to enter marriage freely without fraud, duress, or coercion
court will determine it’s a sham if:
- entered into for limited purpose or
- parties had no intent to participate in the status and obligation of the marriage
if coerced or defrauded person is “fixed” but continues to live as married person, marriage is ratified and valid
Common Law Marriage
created when a couple:
- agrees to be presently married
- has the legal and mental capacity to enter into the marriage
- holds themselves out in public as married
- lives together
Abolished in most states but all states recognize C.L. marriage that was valid in another state if parties had sufficient contact with tha tstate
Putative Marriage
person who enters marriage in good faith believing marriage will be valid but it is invalid, can take on rights of legal spouse for some purposes, such as alimony and property but cannot take away the rights of the preexisting legal spouse
in many states, putative marriage becomes valid marriage if encumbrance preventing marriage is removed
Premarital Contracts
if marriage void, premarital contract enforced only where necessary to prevent inequitable result.
if valid marriage, need six requirements to be enforceable:
- written and signed by party to be charged
- both parties have legal capacity to enter into contract
- signed free of fraud, duress, and misrepresentation
- agreement must accurately disclose income, assets, and liabilities of each party to allow both parties to understand what they are getting and giving up [can be waived by party who is owed disclosure]
- cannot be procedurally or substantive unfair at the time it was entered [but modern trend is to enforce if full disclosure]
- no violation of public policy
Factors for Determining Voluntariness of Premarital Agreement
- whether one party did not have independent lawyer
- whether one party had little time to review and sign premarital agreement
- whether there was a disparity in the bargaining power of the parties
- whether there was a disparity in the financial or legal sophistication of the parties
Premarital Agreement: Violation of Public Policy
four common provisions violate public policy (and only those sections would be invalidated):
- child support and custody provisions (always reviewable; consider under BIOC)
- spousal support provisions (modify or eliminate support of one spouse to degree that party would be dependent on state)
- provisions that will divorce upon occurrence of some event or that penalize for initiating divorce
- provisions that limit remedy available to victim of domestic violence
Premarital Agreement: Choice of law
when agreement silent about jurisdiction, states apply law of state where
- agreement was made OR
- with most significant relationship to the parties
Premarital Agreement: Statute of Limitations
tolled until marriage ends
Contract Between Unmarried Cohabitants
traditionally not upheld.
under modern trend, cohabitants can acquire property and support rights by:
- entering into contracts with each other as long as consideration is something other than sex
- establishing the basis for equitable rights or
- registering as domestic partners
Property Rights: Common Law
majority rule.
spouses manage their own property during marriage. each owns pre-marital property earned during marriage, gifted property, and inherited property. Must take affirmative steps to own jointly.
Property Rights: Community Property
minority rule.
spouses manage their own separate property but owns half of community property (property acquired during marriage that is not gift or inheritance)
Financial support
duty to financially support each other. Courts will balance ability of one party to support the other and the needs of the dependent spouse.
Desertion
some states have laws that forbid desertion and nonsupport and allow spouse to sue for financial support without initiating divorce
Necessaries
creditors can recover money from spouse when creditor provided necessities to other spouse.
Some states impose duty to pay for necessities on more affluent spouse, some on both spouses equally, and some have abolished doctrine
Rights and Responsibilities of Cohabitants
no special rights automatically attach to two people who live together.
Wrongful-death/loss-of-consortium almost uniformly unavailable
Doctrine of Nonintervention
courts tend not to interfere with matters inside of marriage because expectation of privacy.
State intervention will only be at beginning and end
Parental Rights
fit parents presumed to make decisions in their child’s best interest.
Rights:
- to choose nonpublic school education (but must meet certain standards)
- to care, custody, and control, including right to make decisions about how to raise and 3P visitation
Terminating Parental Rights
court must find that:
- child is in danger of serious physical or emotional harm and
- there is nothing less drastic than termination of parental rights available to protect the child
Ending a Marriage: Methods
- legal separation
- annulment
- divorce
- death
Legal Separation
does not end marriage or change status of parties but allows parties to stop living together
Annulment
once annulled, treated as though never existed legally.
Annulment: Void v. Voidable Marriages
void marriages invalid without court intervention
voidable requires annulment proceeding (can only be filed by spouses).
Cannot be annulled if:
- spouse challenging marriage ratifies it
- one spouse dies
- equitable defense applies
Annulment: Reinstatement
void marriage cannot be reinstated unless state has adopted:
- uniform marriage and divorce act: states marriage can become valid if spouses continue to live together after removal of impediment
- enoch arden doctrine: can remarry if (1) spouse absent without explanation for number of years or (2) good-faith belief that spouse dead
Annulment: Property Rights
common law: return parties to position they would be in had they not married
community property: putative spouse doctrine to divide spouses’ property as it would be divided upon divorce
Annulment: Spousal Support
some states allow permanent spousal support to be awarded while others will only allow temporary during pendency of annulment proceeding.
Most jurisdictions will not reinstate alimony awards from previous marriage when second annulled.
Annulment: Children
most states classify as marital children and child support / custody handled same as in divorce proceedings
No-Fault Divorce
all states allow no-fault divorce based on irreconcilable differences or incompatibility. One spouse’s disagreement cannot prevent divorce.
Some states require period of separation before divorce (can waive or shorten if spouses consent)
Fault-Based Divorce: Common Grounds
- abandonment
- adultery
- cruelty and indignity
- impotence
- incarceration
- alcohol or drug abuse
- insanity
Abandonment
- one spouse has left the marital home
- without justification or consent
- with the intent to never return
- time requirement met (usually 1-5 years)
Abandonment: Without Justification
some states require the other spouse to commit acts that are grounds for divorce.
others allow behavior that made living together impossible
Constructive Abandonment
does not need to physically leave if other spouse:
- makes continuing to live together detrimental to health / safety
- partakes in conduct that is demeaning / intolerable
Adultery
alleged guilty spouse had:
- opportunity and
- inclination to commit adultery
Cruelty and Indignity
usually need pattern of physical abuse but one can do it if bad enough.
some states include serious emotional abuse. Some require emotional abuse to cause health problems.
some states have separate ground for mental and emotional abuse - indignity
Impotence
most states require impotence to be permanent
Incarceration
for a period (1-3 years or more)
some states limit to conviction of felony or particularly heinous crimes
Alcohol or Drug Abuse
- start or continue after the parties are married
- be more than occasional use
- endure for time defined by the state statute
- have occurred close in time to the divorce filing
some states allow acceptance of risk to negate this ground
Insanity
- institutionalization for mental illness
- no reasonable chance of recovery
Defenses to Fault-Based Divorce
- collusion
- connivance
- condonation
- recrimination
Collusion
agreement between spouses to deceive the court by falsely claiming that one party was at fault or by agreeing not to use an available defense
Connivance
one spouse facilitates the wrong of the other or willfully ignores the wrongdoing
Condonation
forgiveness of the guilty spouse by the innocent spouse by words or actions
Recrimination
both spouses guilty of the same wrong
Divorce: SMJ
usually present if court has PJ over either of the parties to the marriage
Divorce: Personal Jurisdiction
exists if one party to the divorce action lives in the court’s area of jurisdiction.
some states require party filing for divorce to live in state for period of time before filing
Divorce: Personal Jurisdiction Over Only One Party
ex parte divorce.
court must:
- grant divorce in an in rem proceeding (affects legal status of spouses)
- divide marital property in the state if defendant has minimum contacts
- cannot decide other matters, like out-of-state property division or child/spousal support
Jurisdiction: Annulments
many states have specific courts for annulments.
can be brought in any place where either party resides or sometimes where marriage took place
Jurisdiction: Foreign Decrees
states must recognize divorce decrees from other states if at least one spouse was domiciled in that state at the time of divorce.
for all other matters, full-faith-and-credit clause only applies if granting state had PJ over defendant
doctrine of comity
no requirement to honor divorces outside US but states usually honor if do not violate public policy
interlocutory decrees
some states issue preliminary divorce decrees that become final after a set period of time.
during this time, spouses legally married and other spousal rights still in effect
