Family Law Flashcards
Prenuptial Agreement - Requirements
Statute of Frauds: Must be in writing and signed by BOTH parties.
Entry into the marriage is the only consideration necessary.
The agreement is effective the day the couple gets married.
Must be made voluntarily, in good faith, and w/ lack of undue influence.
Enforcement of Prenuptial Agreements
1) Was the K executed voluntarily?
2) Was the K the product of fraud, duress, coercion, or overreaching?
3) Was the K unconscionable (unfair)?
–For lack of fairness, ask:
1) was the spouse given fair and reasonable disclosure?
2) did the party have the ability to look at the assets to see what was there?
3) was it impossible or not feasible for the party to know what assets their partner had?
Prerequisites to Marry
1) Capacity: the cognitive ability to understand what marriage is and what is expected of them
–Level of mental capacity to marry is lower than legal capacity to enter into K
–Mentally disabled can still marry
–However, person of normal capacity impaired by drugs or alcohol or suffering from some other temporary limitation may not meet this req.
2) Consent of both parties
– A marriage is invalid if either spouse is acting under duress, OR if marriage is based on fraud or deceit.
3) Intent to marry
Formal Marriage
Marriage is a K between 2 individuals who are eligible to marry.
A formal marriage entails:
1) A marriage license
2) Solemnization of marriage by a state-authorized official
Marriage License
Must apply together in person
Couple must also:
1) Provide a signed, notarized affidavit providing SSN and ages
2) Tell clerk that they have read rights / responsibilities of parties to a marriage and either (a) wait 3 days, or (b) complete a pre-marital preparedness course.
No blood test required.
License will expire in 60 days.
Solemnization
Ceremonial marriage must be solemnized by an authorized person:
1) ministers
2) judges
3) circuit court clerks
4) notaries public
Note: the person performing the license must complete and file the license.
If there is a procedural defect (but no fraud), couple is still considered married.
Putative Marriage
Exists where 1 person has been living w/ another person in a genuine belief that they are married, even though they are not.
–This is not a valid marriage and not enforceable as one.
–However, b/c the innocent party had good faith belief that the marriage was valid, this party may be entitled to compensation and/or benefits upon discovery of defect and termination of relationship (just like a divorce in legitimate marriage)
Annulment
A declaration that a prior marriage was invalid b/c of some defect that existed at time it was created.
–This decree means in eyes of FL, the couple were never married.
–The grounds must have existed AT THE TIME OF MARRIAGE.
–E.g., Annulment due to fraud by a party who was deceived by a misrepresentation about an essential aspect of the marriage (must show that but for the misrep., he wouldn’t have entered into marriage)
–Implications: Even though as if marriage never took place, court still has power to declare financial rights / obligations of parties. (court can award alimony, child support, division of property)
–Generally alimony not awarded unless for short duration
–In dividing property put parties in pre-marital position
Void Marriages
Can’t be ratified. They are of no legal effect (void from start). Problem so huge cannot be cured:
1) Bigamy (currently married to someone else)
2) Incest
3) Common Law Marriages - marital relationship due to parties conduct but never recognized by state
–Note: If entered into after 1968, a FL common law marriage is void.
–However, FL will recognize a common law marriage validly entered into from another state.
Note: Anyone can challenge a marriage if it falls into 1 of these categories (e.g., relatives)
Voidable Marriages
Have some impediment that can be cured.
–Remains valid until annulled.
–ONLY the innocent party can raise the impediment that makes the marriage voidable. (must be done in family law proceeding while impediment still exists and both persons still alive)
–Examples: lack of consent, fraud, lack of capacity, no intent to bound, age (must be 18 – or 17 w/ written consent of parent or legal guardian + can’t be more than 2 years apart)
