Family law Flashcards
Marriage
Marriage is a civil contract. Parties must be capable of consent and marriage contract cannot be modified or terminated without state intervention. Two types recognized: Ceremonial (statutory) and common-law marriage.
Ceremonial marriage
Requires a license and ceremony.
Marriage license requirements
Must have capacity to marry (minimum age or parental consent)
Waiting period between date couple applies for license and issuance date
Some states require premarital medical testing (state can mandate this but can’t condition issuance of the license on results)
Expiration date: Expires if ceremony isn’t conducted
When will marriage license not be issued
One party is already married;
The parties are too closely related;
The marriage is a “sham”
The parties are incapable of understanding the nature of the act;
One or both parties is under the influence of drugs or alcohol;
A party lacks consent due to duress or fraud
Solemnization (ceremony) requirments
The marriage ceremony requires two or more witnesses and must be solemnized by a judge, political official, or member of the clergy.
Common law Marriage
The parties must agree they are married (with present intent to be married), cohabit as married, and hold themselves out as married.
Conflict of laws and Common Law Marriage
Not all states permit common law marriage but nearly all states will recognize a common-law marriage if it was entered into in a jurisdiction that does permit common law marriages.
States will consider public policy when deciding whether to recognize a marriage. Some states may require that a couple’s common law marriage is valid only if they domiciled in the permitting state while others may find it valid even if the couple only had a short, transitory visit to the permitting state.
Annulment
Annulment voids a marriage and declares it as having never been valid
Annulment: Void marriage
A void marriage is treated as it if never happened and does not to be judicially dissolved; not legally recognized for any purpose.
Grounds for void marriage:
1)Prior existing marriage (some states allow later marriage to become valid if one party has good faith belief marriage was valid and impediment is removed);
2) Incest
3) Mental incapacity
Annulment: Voidable marriage
Voidable marriage is valid until judicially dissolved.
Grounds for voidable marriage: Age, impotence (unless known prior to marriage), intoxication (at time of marriage) fraud, duress, lack of intent.
For age only the minor or their parents can annul the marriage. Many states don’t allow annulment based on age after the underage party turns 18.
Equitable distribution of property in annulment and children
Children from annulled marriage are considered martial children. A party may request an equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage.
Defenses to annulment
The only defense to a void marriage is denying the existence of the impediment
Voidable marriages have equitable defenses of unclean hands, laches, and estoppel
Grounds for divorce
Residency: Most states require at least one party is a resident
No-Fault Grounds: Marriage is irretrievably broken and there is no prospect of reconciliation. Irreconcilable differences must exist for a specific period of time prior to divorce filing.
Fault Grounds: Adultery, Cruelty, Desertion, Habitual Drunkenness, Bigamy, Imprisonment, Institutionalization for insanity
Fault based divorce defenses
Recrimination (both have committed a wrong)/unclean hands, connivance (consent or participation in the wrong), condonation (forgiveness), collusion, provocation, insanity, consent, justification
Challenging a divorce on religious grounds will always fail.
Community Property
Most community property states require an equal division of property
Non-Community property states require an equitable (fair) distribution but not necessarily equal
