Family Law Flashcards
Pre-Marriage: Breach of Promise to Marry
Not legally enforceable
Pre-Marriage: Gifts
If an engagement is broken, generally, cannot recover gift unless contingent on subsequent marriage (e.g., engagement ring)
Pre-Marriage: Pre-Marital Agreement
Purpose: primarily to settle economic issues between the parties; contingent planning documents, mainly for in event of divorce
Basic principles:
(1) Statute of frauds: must be in writing and signed by both parties
(2) Agreement is only effective if couple got married
(3) Subject to usual contractual defenses:
(a) Duress: coercion, states split re emotional)
(b) Unconscionability: half states have UPMAA – (i) make showing if richer party fails to disclose assets at time of agreement and other party did not waive disclosure and there was no independent knowledge of the other party’s assets; (ii) unconscionable if any alimony or support provision would leave recipient in “unforeseen, extreme hardship” (i.e. need public assistance); (iii) general factual clues: one party represented, business sophistication of parties, knowledge of rights given up
Enforcement:
(1) Property provision: fair and reasonable (note unconscionability determined at time agreement was formed)
(2) Spousal support: against public policy to enforce waiver if would leave spouse dependent on the state
(3) Custody: review for best interests
(4) Child support: equal duty to support, cannot waive
Ceremonial Marriage
In 40 states, this is the only way to get married
Two requirements:
(1) Need a license (to determine legal capacity to marry)
(2) Ceremony: (a) An officiant to conduct the ceremony, usually a member of the clergy or a public officer who can administer oath as part of responsibilities; (b) during ceremony must exchange promises
Common Law Marriage
Valid in 10 states (but is portable)
Requirements:
(1) Co-habitation: living together and having sex
(2) Holding yourselves out as a married couple
Ways to End a Marriage
Two ways:
(1) Annulment
(2) Divorce
Annulment: Void Marriage - Definition
Void marriage: if you are in a void marriage, you do not need to get an annulment because you are not legally married. A marriage is void if the grounds that make the marriage cannot be waived because they are against public policy
Why do this? Clarity in the record; adjudicating/resolving collateral issues
Annulment: Voidable Marriage - Definition
If the marriage is voidable, you are actually married and need an annulment
A ground that makes a marriage voidable is waivable because it only implicates equities between the two parties
Annulment: Grounds for VOID Marriage
(1) Bigamy: in order to have capacity to marry, you have to be single (i.e. not married)
(a) In many states, bigamy is a crime
(2) Consanguinity (incest): cannot be too closely related to your spouse
(a) Forbidden: ancestors (parents, grandparents); descendants (children, grandchildren); siblings (half or whole); lineal relatives up or down one generation (aunts, uncles, nieces, nephews)
(b) Jurisdictions are split on cousins
Annulment: Grounds for VOIDABLE Marriage
(1) Parties are underage: in majority of states, must be 18, but in some states 16 with parental consent
(a) Waiver by continuing to cohabit after reach majority
(2) Mental incapacity:
(a) Disease of the mind (mentally ill) – waive by staying together after mental illness is cured (annulment must usually be through legal guardian)
(b) Developmental disability (e.g., low mental functioning) – permanent condition, so as practical matter cannot waive (annulment must usually be through legal guardian)
(c) Under influence of drugs or alcohol at time of ceremony – waive by staying in marriage after sobering up
(3) Incurable physical impotence: inability to consummate the marriage/have sex (presupposes couple has opted to refrain until after marriage);
(4) Duress: must have free will to marry
(a) Waive by continuing marriage after physical threat ends
(5) Fraud: Any misrepresentation or concealment of information by one party prior to the date of marriage, where the information goes to an essential aspect of the marriage
(a) Religion:
(b) Procreation: ability to have children, paternity
(c) Past sexual history (e.g., was a sex worker)
(d) Not fraud to lie about money, property, career, social status
Annulment: Economic Remedies
Split whether you can get economic remedies from an annulment
In most states, you can get property division
Whether or not you get alimony is a mater of dispute
No Fault Divorce
Only need to prove that the marriage has irretrievably broken down
Prove:
(1) One of the spouses moves out of the marital home and during that period the spouses refrain from having sex
(2) Satisfy designated period of time: usually a shorter period of time if both spouses agree that marriage is broken
Trend is away from no fault and towards fault divorce
Preferable to fault divorce because more private, cheaper, and less emotionally draining
Fault Divorce: Adultery
Cheating, being sexually disloyal to your spouse
Fault Divorce: Desertion
Generally, desertion is an unjustified departure from the marital home with no intent to return
Absence of intent to return is inferred from failure to return for a specified period of time, usually one year
Fault Divorce: Physical Cruelty
A single episode of domestic violence is sufficient – don’t need a pattern of abuse
Fault Divorce: Mental Cruelty
More open-ended and flexible grounds
Usually involves a repeated conduct
Discretionary
Examples: one spouse perpetually verbally abuses the other (particularly in front of others); one spouse is cold and aloof; persistent refusal to be physically intimate; one spouse stops being hygenic
Fault Divorce: Habitual and Voluntary Drug Addiction or Drunkeness
In most states, there is a specified period of time over which the behavior must endure
(probably doesn’t include getting hooked on painkillers after surgery)
Fault Divorce: Insanity
If the other spouse was sane when you got married, but became insane, can have ground for divorce
In most states, requires that the party is institutionalized, and in many there is a time requirement (e.g. 3 years)
Fault Divorce: Affirmative Defenses
(1) Condonation: marital equivalent of waiver
(a) Elements: (i) Knowledge of the misconduct; (ii) Forgiveness (express or implied); (iii) Resumption of marital relations
(2) Connivance: family law equivalent of entrapment – defendant proves she was lured into the misconduct by the other party
(3) Recrimination: equivalent of dirty hands – if you ask for something other than damages, you plaintiff must be free of misconduct (trend to abolish this)
Legal Separation
Judicial proceeding in which the court will adjudicate economic issues; parties are still married at the end of it
Procedure for Divorce: Subject Matter Jurisdiction
Any state where on spouse is domiciled has subject matter jurisdiction over the divorce
Procedure for Divorce: Personal Jurisdiction
Don’t need PJ over the defendant spouse because the marriage is a physical thing located in the state where a spouse is
BUT do need PJ over both parties to get economic remedies
