Family Law Flashcards
Premarital agreement is valid when…
There is full disclosure, the agreement is fair and reasonable, and it is voluntary. Must be in writing and signed by party to be charged.
What are the two main requirements for a valid marriage?
A marriage license and a solemnization of the marriage. A valid marriage is a civil contract that cannot be modified or terminated without state intervention.
What two types of marriage are typically recognized by law?
Ceremonial (or statutory) marriage and common-law marriage
What is the minimum age requirement to marry without parental consent in most states?
At least 18 years old
What may allow individuals under 18 to marry?
Parental consent and/or judicial approval
What is a common requirement imposed by many states regarding marriage licenses?
A waiting period between application and issuance or between issuance and the marriage ceremony. Can be waived in cases of emergency.
When will a marriage license not be issued?
If one party is married, parties are too closely related, entered into a sham marriage, or incapable of understanding the nature of the act. Most jurisdictions also provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were under the influence of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent because of duress or fraud.
What is typically required during the solemnization of a marriage?
Marriage be performed in front of at least two witnesses. Some states allow for a proxy to stand in for one of the parties who cannot attend the ceremony if the party provides written authorization for the third person to act as a proxy. In most jurisdictions, a judge, political official, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and filed with the appropriate government office.
Common law marriage requirements
Common-law marriages are defined as marriages when the parties:
- they are married;
- Cohabit as married; and
- Hold themselves out in public as married.
Heartbalm action
A heartbalm action is a civil suit for money damages based on the damage to the jilted party’s reputation when an engagement is broken.
Ways to end a marriage
Divorce, annulment or death.
Annulment
An annulment voids a marriage and declares it invalid (as opposed to divorce, which terminates a valid marriage).
Putative Marriage Doctrine
Way to offer equitable relief to a party who is unaware of an impediment to the marriage that makes it either void or voidable.
Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine is normally invoked to provide equitable relief, including maintenance and property distribution.
Divorce
Legal dissolution of a marriage
Factors in distributing marital property
i) Length of the marriage;
ii) Prior marriages;
iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses;
iv) Contributions to education;
v) Needs for future acquisitions;
vi) Income, medical needs, retirement of both spouses;
vii) Contributions to increases in marital property, including homemaking and child-rearing services;
viii) Value of separate property;
ix) Reduction in valuation in marital property by one spouse;
x) Standard of living;
xi) Economic circumstances of each spouse at the time of divorce; and
xii) Custodianship of any minor children.
In most states, the fact that a divorce is granted on a fault ground is not a factor in the distribution of property. However, dissipation of marital property may be a factor.
Dissipation
Dissipation occurs when one spouse uses marital property for her sole benefit after the marriage has irreconcilably broken down (e.g., the purchase of expensive gifts for a paramour).
Spousal Support/Alimony
Spousal support (also called maintenance or alimony) is the obligation of one spouse to provide the other with support in the form of income.
Spousal Support Factors
i) Any financial resources of the spouse seeking support (e.g., property to be awarded in the divorce);
ii) Each spouse’s earning potential and the other spouse’s ability to pay support;
iii) The spouses’ standard of living during the marriage;
iv) The time it will take for a spouse to find employment or complete any education or training necessary for a job;
v) The length of the marriage;
vi) Any contributions by one spouse to the marriage (particularly those that enhance the earning potential of the other spouse); and
vii) The parties’ age and physical and mental health.
In many states, fault or marital misconduct may also be considered when determining spousal support. The weight that the marital misconduct is given in determining alimony depends on the jurisdiction. Some jurisdictions consider marital misconduct as a factor and others give it a preclusive effect.
Types of Alimony
Lump Sum
Permanent
Limited Duration
Rehabilitative
Reimbursement
Palimony
Lump sum alimony
A lump-sum spousal support award is a fixed and irrevocable amount that may be made payable in a single payment or in fixed periodic payments for a specific period of time.
A lump-sum spousal support award may not be modified in the absence of fraud.
Permanent Alimony
Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur.
Permanent alimony is meant to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during the marriage. It is primarily used in cases in which one spouse remained out of the workforce for homemaking or child-rearing purposes.
Permanent alimony is typically awarded only for a marriage of long duration. Although jurisdictions differ on the definition of “long-term,” it typically refers to a marriage of 15 years or more.
Limited duration alimony
Limited-duration alimony is established for a limited period of time.
Limited duration alimony is not meant to facilitate an increased earning capacity of the dependent spouse or to compensate a spouse who has sacrificed. Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate), but an economic need for support still exists.
Rehabilitative Support
Rehabilitative support is for a limited period of time (e.g., until the spouse receives education or employment).
Rehabilitative alimony is meant to enhance and improve the earning capacity of the economically dependent spouse. For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period.
Reimbursement alimony
awarded to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future.
Often, this type of alimony is awarded only in cases in which one spouse did not work in order to secure an advanced degree or professional license. It is rarely used, and unlike the other forms of alimony, it is based on past contributions rather than present or future needs. Some jurisdictions treat this type of payment as property division instead of reimbursement alimony.
