Family Law Flashcards
What does a valid marriage require?
1) consent from both parties;
2) a marriage license; AND
3) a ceremony (solemnization by a judicial officer or church)
What does Common Law Marriage require?
Common Law Marriage Requires that the spouses:
1) live together for a specified amount of time;
2) be legally able to marry;
3) have a present agreement that they are married; AND
4) hold themselves out as being married
A valid Common Law Marriage creates rights/obligations identical to a ceremonial marriage.
- most states will honor a common law marriage validly obtained in another state
What is a bigamous marriage?
A bigamous marriage is NOT valid if entered into when one of the parties is still married (before the dissolution of an earlier marriage).
BUT, a marriage may be saved under:
a) equity doctrine: creates a strong presumption that the most recent marriage is valid (rebuttal if evidence shows first marriage was not dissolved).
b) UMDA: marriage may be validated upon removal of the impediment (i.e. earlier marriage is terminated)
When is a premarital agreement enforceable?
A premarital agreement is enforceable unless procured by fraud, duress, or coercion
What does the Uniform Premarital Agreement Act (UPAA) require for a premarital agreement to be enforceable?
Agreement must be:
1) in writing; AND
2) signed by both parties
Agreement is NOT enforceable is:
a) Involuntary (fraud, duress, coercion); OR
b) Unconscionable when executed AND before execution the spouse was: (i) not provided fair disclosure (of property/financial obligations); (ii) did not waive disclosure in writing; or (iii) did not have (or could have) knowledge of such information.
What are the factors to consider whether or not a premarital agreement was involuntary?
Courts consider:
(1) presence of independent legal counsel;
(2) length of time between agreement and wedding;
(3) ability to understand the agreement; and
(4) other reasons for proceeding with the marriage (i.e. pregnancy)
Can a premarital agreement contain a clause for child custody and support?
This kind of clause is NOT binding on a court, and any provision that adversely affects a child’s right to support is unenforceable.
If an agreement is NOT in the child’s best interests, a court may order a parent to pay an amount reasonable or necessary for the child’s support.
Can a premarital agreement contain a clause for spousal support?
Some states view this as invalid and against public policy.
Under the UPAA it is permitted but not enforceable if it makes the spouse eligible for public support (welfare). A court may order support to the extent necessary to avoid eligibility for public support.
Can a premarital agreement eliminate marital duties and allocate financial responsibility?
Spouses may agree on any matter that is not in violation of (a) public policy, or (b) criminal law. Spouses may allocate financial responsibilities, but its not binding on third parties.
Agreements that limit spousal support during marriage are generally void as against public policy.
Is a spouse liable to a creditor for the other spouse’s expenses?
A spouse is liable to creditors who have provided necessities (good, clothing, shelter) to the other spouse.
Medical expenses: deemed necessities in some states (a non-debtor spouse may be laible to the extent the debtor spouse is unable to pay)
Who has jurisdiction over marital/divorce actions?
State courts have subject matter jurisdiction.
Who has jurisdiction over an ex parte divorce?
an ex parte divorce may be maintained without personal jurisdiction over the absentee spouse ONLY IF plaintiff-spouse is a domiciliary of the rendering state. Many states have durational residency requirements.
Who has jurisdiction over economic and child support issues?
A court MUST have personal jurisdiction over the defendant-spouse.
Divisible divorce - one spouse can terminate the marriage (ex parte divorce) in one proceeding and reserve other issues for a later proceeding.
