Family Law Rules Flashcards
Requirements for Marriage
- License
- Ceremony
- No legal implications
- not too closely related
- no prior undissolved marriage to living spouse
- of legal age - Capacity to consent
- mental ability to consent
- understand actions/voluntarily agree
Common Law Marriage
- Consent between people with capacity to consent
- Cohabitation - no specified period of time
- Holding themselves out publicly as spouses
Requirements of Enforceable Premarital Contract
- Agreement entered into voluntarily
- Contract must be in writing and signed by the party to be charged
- Both parties must make a full and fair disclosure of their financial worth
- Economic provisions must be fair and reasonable
Annulment
Declares marriage invalid because of the impediment that existed at the time of the marriage makes it legally void or voidable
Void
Invalid because failed to meet the essential requirements of a legal marriage; parties can walk away with no legal action
- Bigamy
- Polygamy
- Consanguinity
- Nonage
Voidable
Valid marriage until declared null; can only be attacked by the parties to the marriage
- Incurable physical impotence
- Nonage (states differ with this)
- Lack of capacity
- Duress
- Fraud
Grounds for no-fault divorce
- Marriage is irretrievably broken (irreconcilable differences/incompatability)
- Parties have been living apart for a specified time
Defense: one spouse can deny existence of above grounds; likey difficult
Jurisdiction for Divorce
One of the parties needs to be domiciled in the jurisdiction for a divorce to be filed (bona fide resident)
Venue is in county which spouses reside
If only one spouse domiciled, then state can grant ex parte divorce but can not award spousal support or property division.
Possible for two states to have jurisdiction
Fault Grounds for Divorce
- Adultery
- Willful desertion for a specified time (no intent to return; spouse won’t return home after other has asked)
- Extreme physical or mental cruelty
- Drug addiction or habitual drunkenness
- Mental illness
Traditional Defenses to Fault Grounds
- Collusion
- Connivance
- Condonation
- Recrimination
Collusion
Agreement between spouses to simulate grounds for divorce or to forgo raising a valid defense
Connivance
Willing consent by one spouse to the other spouse’s misconduct
Condonation
Forgiveness of marital offenses with full knowledge of their commission
Recrimination
Party seeking divorce is also guilty of misconduct for which a divorce may be granted
Community Property Approach for Dividing Property
All property acquired during the marriage is deemed owned 1/2 by each spouse, and all property acquired before the marriage or by gift/bequest is separate property
Equitable Division of All Property
Court equitably divides all property owned by either spouse, whether acquired before or after the marriage
Equitable Division of Marital Property
Each spouse takes their separate property and court equitably divides the marital property (anything acquired during marriage)
Separate Property
- Property owned before marraige
- Property acquired by gift/inheritance
- Income/appreciation of separate property
- Pain/suffering awards
- Personal damages
Marital Property
- Earnings
- Employment benefits
- Lost wages
- Reimbursement for medical bills
- Recovery for damages to marital property