Family Law Flashcards
Premarital Contract Requirements
(i) contract must be in writing and signed, (ii) the agreement must be entered into voluntarily [without fraud, duress, or overreaching], (iii) must be full and fair disclosure of the parties’ assets or proof that the party against whom the agreement is being enforced had independent knowledge of the assets [under the UPAA, courts only examine this if the agreement is unconscionable], (iv) some courts consider whether the economic provisions are fair and reasonable
Marriage Requirements
(i) license, (ii) ceremony with authorized officiant, (iii) no legal impediments to marriage, and (iv) capacity to consent
Common Law Marriage
requires: (i) consent to marry [legal capacity + no legal impediments], (ii) cohabitation, and (iii) the couple holding themselves out publicly as spouses
Tenancy by the Entirety [rights/termination]
(i) includes right of survivorship, and one spouse cannot convey or encumber the property without the consent of the other spouse, (ii) upon dissolution of the marriage, tenants by the entirety become tenants in common
Doctrine of Necessaries
can be used to make one spouse liable to third parties for the other spouse’s purchases for necessary expenses, such as food, clothing, and health care
T/F: Protective orders can initially be granted ex parte
True
Alienation of Affection Requirements
(i) evidence of genuine love and affection between validly married spouses, (ii) evidence that the love and affection was alienated or destroyed, and (iii) proof that the defendant’s actions caused the loss of love and affection
T/F: Adultery is required for an alienation of affection claim
False
T/F: Proof of damages is required for an alienation of affection claim
True
Criminal Conversation Requirements
(i) existence of a valid marriage + (ii) act of adultery
Rights within the constitutionally protected right to privacy
right to marry; right to procreate; right to use or sell contraceptives; right of related persons to live together; right of parents to educate their children outside of public schools; right of parents to decide issues concerning the care, custody, and control of their children
Annulment
a backward-looking doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable; parties are treated as though they were never married
Void Marriage
it is invalid, an utter nullity, because it failed to meet the essential requirements for a legal marriage
Ratification of Void Marriage
the Uniform Marriage and Divorce Act and some states hold that if the impediment causing the marriage to be void is removed, the marriage becomes valid if the parties continue to cohabit
Examples of Void Marriages
bigamy/polygamy, consanguinity
Voidable Marriage
is valid until declared null, and typically occurs when some type of event affects the adequacy of a party’s consent
Legal Impediments to Marriage
parties being too closely related [can’t marry ascendants/descendants/siblings/half-siblings/aunt/uncle/niece/nephew], neither party can have a prior undissolved marriage to a living spouse
T/F: Voidable Marriages cannot be remedied or ratified by continued habitation after the removal of the impediment
False; they can be ratified and ratification means the marriage cannot be annulled
Examples of Issues that Make a Marriage Voidable
(i) nonage, (ii) incurable physical impotence, (iii) lack of capacity, (iv) duress, and (v) fraud
T/F: Children of annulled marriages are treated as marital children
True