Family Law

Question 1

What is marriage

Answer 1

union of two individuals with accompanying obligations and liabilities

Question 2

Breach of promise to marry

Answer 2

Quasi-tort, quasi-contract action
abolished in most states.
Recovery may be allowed for actual damages as well as loss of reputation, mental anguish, injury to health, punitive damages

Question 3

Gifts in contemplation of marriage

Answer 3

engagement gifts must be returned

Question 4

Limitation on who may marry

Answer 4

must:
be of minimum age (18 unless parent or judicial approval)
not too closely related
have capacity to consent
not have a prior undissolved marriage to a living spouse

Question 5

Procedural requirements

Answer 5

License: most states need a license before solemnization. Require cert from physician that person is free from communicable diseases, possible 72 hr waiting period

Solemnization: ceremony performed by judicial officer or member of clergy

Question 6

State of mind requirements

Answer 6

understand actions and voluntarily agree to them (under influence may lack it)
Induced to marry for fraud, duress, coercion, force: also lack

Question 7

Common law marriage

Answer 7

Exchange of consents between two people with capacity
cohabitation
a holding out publicly of living together as spouses

Abolished in most states, but if valid under of laws of one state, usually will be recognized as valid

Question 8

Premarital contracts

Answer 8

valid contracts for distribution of property upon divorce or death - marriage is sufficient consideration

Content of contract: UPAA - parties may contract as to
rights and obligations as to property of either or both of them
right to buy, sell, lease, assign, dispose of, or control property
disposition of property upon separation, dissolution, death or other event
modification or elimination of spousal support
making of a will, trust, or other arrangement to carry out provisions of agreement
choice of law governing agreement construction
any other matter not in violation of pub pol or criminal statute

Question 9

Enforcement of premarital contracts by court

Answer 9

entered into voluntarily
in writing and signed by party to be charged
both parties must make full and fair disclosure of financial worth
economic provisions fair and reasonable

Question 10

Extra notes on enforcement of premarital contracts

Answer 10

Independent counsel: both parties represented by independent counsel - far less likely that a court will find overreaching
Spousal support: may refuse to enforce provisions that would eliminate or severely limit spousal support upon divorce, especially if left a pauper
Void marriage: marriage void, agmt enforceable only as to extent necessary to avoid inequitable result
Choice of law: no choice of law provision, enforceability governed by law of the state in which executed or most significant relationship

Question 11

Rights and responsibilities of spouses

Answer 11

Property: each property controls own property
Tenancy by entirety - prohibits encumbrance or conveyancing by one spouse
Marital property: property acquired during marriage. Dissolution - court has broad discretion

Support: obligation to support each other during marriage; one spouse may be held liable to third party for the other spouse’s authorized purchases. Even without agreement, liable for necessaries

Suits between spouses: most states eliminate interspousal immunity, only for highly private activity or simple domestic negligence

Spousal abuse and protective orders: spousal abuse criminalized, increases police involvement

Question 12

Family privacy

Answer 12

Internal affairs of family cannot be regulated by courts

Question 13

Constitutional privacy

Answer 13

Right to marry, procreate, use or sell contraceptives, within limits right to abortion, right of related persons to live together, educate children outside public schools, decide issues concerning care, custody, and control of children

Question 14

Spousal evidentiary privilege: family law

Answer 14

married person cannot be compelled to testify against spouse in any criminal proceeding

only able to be invoked during valid marriage

marital privilege: either spouse, whether or not a party, privileged to refuse to disclose and compel other party from disclosing confidential communication made between them when married

Question 15

Tortious interference with the marital relationship

Answer 15

Alienation of affections: love and affection between spouses who are validly married, love and affection alienated and destroyed, defendant’s acts caused the loss. Need proof of damages

Criminal conversation: marriage of spouses, adultery between defendant and spouse during marriage, damages

Negligent interference with consortium or services: loss of consortium due to injuries from defendant’s negligence

Question 16

Marital agreements

Answer 16

agreement between spouses who intend to remain married (usually alters or confirms marital rights or obligations or at separation, dissolution, or death)

usually covers property rights

Question 17

Termination of marriage

Answer 17

Annulment and Divorce

Question 18

Annulment

Answer 18

declaration that a marriage is invalid because there was an impediment at the time of the marriage - treats parties as never married

Question 19

Void v. Voidable marriage

Answer 19

Void: complete nullity - fail to meet essential elements; cannot ratify, parties may walk away from marriage without court order (some states allow for remedy by continued habitation after removal of impediment - previous married partner dies)

can be attacked by any interested party, subject to collateral attack by third party

Voidable: deemed valid until annulled - failure of consent to marriage contract, because of impediment at time of marriage, one spouse may bring action to have marriage invalidated (only interested parties can attack)

can be ratified with continued cohabitation after impediment removed

Question 20

Void marriage grounds

Answer 20

bigamy / polygamy (arguments for new marriage - presumption latest marriage valid, continued cohabitation validates second marriage)

Consanguinity (too closely related)

Nonage (some states)

Question 21

Voidable marriage grounds

Answer 21

Nonage (most states) remain in relationship by continuing marriage past statutory age

Incurable physical impotence (inability to have kids is not impotence; if ability to have kids misrepresented, that is fraud)

Lack of capacity
incompetence due to drugs and alcohol
lack of mutual assent to marriage
duress
fraud going to essentials of marriage (ability or willingness to engage in sexual relations or bear children)

Question 22

Defenses to void and voidable marriages

Answer 22

Void: deny existence of defect (removal of impediment validates marriage under UMDA)

Voidable: ratification most common (may have laches or estoppel)

Question 23

Status of children of annulled marriage

Answer 23

they are marital children; treat support and custody issues as if divorced

Question 24

Spousal support and annulment actions

Answer 24

not awarded in spousal support actions; termination when remarried and subsequent annulment of a second marriage does not reinstate a prior support action

Question 25

Division of property in annulment action

Answer 25

place parties in pre-marriage position, give each party property to which they have legal or equitable title

Question 26

Jurisdiction of an annulment action

Answer 26

heard by the equity courts; state of domicile of either party has jurisdiction, place of celebration of marriage

Question 27

Divorce and separation

Answer 27

divorce: a decree of absolute divorce terminates the marriage relationship
separation: does not terminate marriage, but parties have rights regarding property, spousal support, custody, and child support adjudicated in proceeding (can turn into absolute divorce if parties request)

Question 28

No-fault divorce

Answer 28

Marriage irretrievably broken (irreconcilable differences or incompatibility)
living separate and apart for statutory period of time

Only defenses: denial of grounds

Question 29

Fault grounds for divorce

Answer 29

Adultery
Willful desertion for specified time
Extreme mental or physical cruelty
Voluntary drug addiction or habitual drunkenness
Spouse's mental illness

Defenses:
Collusion - agreement between spouses to simulate grounds for divorce or forgo raising a valid defense
Connivance - willing consent of one spouse to other spouses’s misconduct (most common in adultery, abolished in most states)
Condonation - forgiveness of marital offenses with full knowledge of their commission. Resumption of marital relations after forgiveness is required
Recrimination - party seeking divorce is also guilty of misconduct for which divorce may be granted (no longer recognized)

Question 30

Jurisdiction and Recognition of Decrees

Answer 30

Residency: one party must be domiciled where action is brought. May have durational residency requirement

In rem action: divorce is an in rem action. Certain types of service permitted. For out of state property rights or spousal support, court must have PJ

Recognition of Decree - full faith and credit: as long as one party domiciled in state that granted divorce, decree recognized in all other states. property rights, spousal support, child support get full faith and credit only if court had personal jurisdiction over defendant