Family Law Flashcards
A valid marriage requires:
(1) consent; (2) marriage
license; AND (3) solemnized by ceremony by judicial officer or church.
Consent – Depends on the state. Courts will find consent if: (a) sought some benefits of marriage (some states); or (b) obligations of marriage (other states).
Common Law Marriage Elements:
(1) live together for specified amount of time;
(2) legally able to marry;
(3) 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 CL marriage validly obtained in another state.
Bigamous Marriage
A person CANNOT marry to more than one person at the same time. A marriage is NOT valid if entered into when one of the parties is still married (before the dissolution of an earlier marriage).
BUT may be saved under:
(a) Equity Doctrine strong presumption that the most
recent marriage is valid (rebuttable if evidence shows
first marriage not dissolved);
OR
(b) UMDA – marriage may be validated upon removal
of impediment.
Premarital Agreements
valid and enforceable unless
procured by fraud, duress, or coercion.
UPAA (Uniform Premarital Agreement Act):
- Agreement must be in writing and signed by both parties. No consideration is required.
Not enforceable under UPAA if:
a) Involuntarily (fraud, duress, coercion); OR
b) Unconscionable when executed and before execution spouse was (i) not provided fair disclosure; (ii) did not waive disclosure in writing; or (iii) did not have knowledge of such information.
Voluntarily factors: (1) presence of independent 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).
Premarital Agreements - Child Custody & Support
NOT binding on a court,
and any provision that adversely affects a child’s right to support is unenforceable.
- If 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.
Premarital Agreements - Spousal Support
- Some States –> Invalid as against public policy
- UPAA –> Permitted, but not enforceable if makes spouse eligible for public support. Court may order support to the extent necessary to avoid eligibility
Premarital Agreements - Eliminating Fundamental Marital Duties & Allocating
Financial Responsibility
- Spouses may agree on any matter that is not in violation
of public policy or criminal law. - May allocate financial responsibilities, but NOT binding on third parties.
- Agreements that limit spousal support during marriage = generally void against public policy.
Payment for Necessities
– Spouses are required to
pay for each other’s necessities, and are liable to a
creditor who has provided such necessities.
Medical expenses are deemed necessities in some states (non-debtor spouse may be liable to the extent the debtor spouse is unable to pay).
Jurisdiction in Marital/Divorce Actions
- State courts have subject matter jurisdiction.
- Ex parte divorce – may be maintained without personal jurisdiction over the absentee spouse, if plaintiff spouse is domiciliary of the rendering state.
- Economic or child custody/support issues – must have personal jurisdiction over the defendant spouse.
-
Divisible divorce – one spouse can terminate the
marriage in one proceeding, and reserve other issues for a
later proceeding.
PKPA (Parental Kidnapping Prevention Act) – Court
may decide child custody only if:
(1) Home State Jurisdiction – home state or lived with a
parent for 6+ months immediately before custody action.
(2) Significant Connection Jurisdiction – no home state +
child and at least one parent have a significant connection
to the state.
(3) Emergency Jurisdiction – child is physically present in
the state + child abandoned or emergency to protect child.
(4) More Appropriate Forum Jurisdiction – no other state
has jurisdiction.
Annulment
invalidates marriage
Grounds:
a) lack of capacity (fraud, duress, mental incapacity)
(b) bigamy
(c) consanguinity (marriage between close family members) ; OR
(d) Underage at the time of marriage
Fraud
made misrepresentation prior to the marriage regarding an essential and vital part (sex, procreation) of the marriage and marriage would not been consented to if the other spouse had been made aware.
- Waived if spouse continues to cohabitate after discovering the facts.
- Usually NOT granted for misrepresentations
concerning character or financial situation.
Divorce Grounds
a) cruel and inhuman treatment;
b) adultery;
c) abandonment for a set amount of time;
d) habitual drug addiction or drunkenness; OR
e) no-fault divorce-irretrievable break down of
relationship for set amount of time.
Setting Aside Separation Agreement
– Invalid if (a) unconscionable, OR (b) result of fraud.
Setting Aside Divorce Agreement
– May be set aside if: (1) substantially unfair; AND (2) result of fraud or mediator misconduct.
Equitable Division of Marital Property Approach
marital assets are to be divided by equitable distribution
- cannot divide separate property.
Separate Property is:
1) Property individually acquired before marriage;
2) Gifts and bequests to an individual during marriage;
3) Property spouses agree will be separate property; and
4) Passive appreciation – value only due to the passage of time of the above property.
