Getting Married

Question 1

Fraudulent Inducement to Marry.

Answer 1

If the consent of either party to a marriage was fraudulently obtained, the marriage will be void from the time its invalidity is declared by a court.

Question 2

Premarital Gifts Conditioned on Marriage.

Answer 2

Under the traditional rule, a gift conditioned on marriage (e.g., the engagement ring) was returned to the donor if the donor was NOT at “fault” for the break-up. Under the modern view, such gifts are returned to the donor regardless of fault.

Question 3

Contracts Restraining or Promoting Marriage.

Answer 3

Contracts that restrain or promote marriage are disfavored because the right to marry is a fundamental right. Complete restraints on the right to marry are invalid; however, partial restraints may be valid if they are reasonable under the circumstances.

Question 4

Do any states recognize bigamous marriage?

Answer 4

NO state recognizes the validity of a bigamous marriage (being married to more than one person at the same time).

Question 5

there are two marriage saving doctrines that apply to bigamous marriages:

Answer 5

Removal of Impediment. Under the Uniform Marriage and Divorce Act (UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon the removal of the impediment (e.g., an earlier marriage). The marriage becomes valid as of the date that the impediment is removed.

Presumption of Validity. Under the presumption of validity, the last of several marriages will be presumed to be valid. This presumption may only be rebutted with strong evidence that the prior marriage still persists.

Question 6

Do any states permit same sex marriages?

Answer 6

The Supreme Court has determined that same-sex marriage is a constitutional right. Therefore, same-sex marriage is permitted in every state.

Question 7

Marriages determined to be incestuous (marriages between relatives) are…

Answer 7

treated as VOID.

Jurisdictions are fairly evenly split regarding whether cousins may marry.

Question 8

Under the UDMA, persons may NOT marry their:

Answer 8

Ancestors or descendants;
Siblings (regardless of whether whole/half blood or adoption);

OR

Uncles, aunts, nieces, or nephews.

Question 9

In nearly every state, persons must be how old to marry?

Answer 9

18 years of age to marry. However, some states allow 16 or 17 year olds to marry with parental consent or judicial approval.

Question 10

Physical incapacity and marriage

Answer 10

Physical Incapacity. A marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the problem at the time of solemnization.

Question 11

A marriage is voidable for fraud if…

Answer 11

… a party makes a material misrepresentation that affects the essentials of the marriage (e.g., concealing impotency, concealing a pregnancy by another, lying about religious beliefs)

Question 12

A valid marriage requires that:

Answer 12

The parties obtain a marriage license prior to the solemnization ceremony;

The marriage is solemnized by a ceremony that is conducted by an authorized clergyman or judge;

AND

Both parties consent.

Question 13

As to consent and marriage, what is traditional v modern approach?

Answer 13

Under the traditional approach, courts will find consent if the parties participated in a valid ceremony and sought to obtain at least some of the benefits of marriage.

Under the modern approach, courts will find consent if the parties intended to take on the usual obligations of marriage (slightly higher standard).

Question 14

Most states have abolished…

Answer 14

… common law marriage.

In jurisdictions that recognize common law marriage, the proponent of the marriage must prove that the parties:

Cohabitated (i.e., lived together) for the statutory period;

Held themselves out as married;

AND

Intended to be married.

Question 15

Most states will recognize a common law marriage if…

Answer 15

… it was validly obtained in a jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful public policy of the jurisdiction with the greatest interest in the marriage of the parties.

Perhaps because the
vast majority of states once permitted common law marriage, courts in states that do not
recognize common law marriage have consistently held that it does not violate any strong public
policy to recognize an out-of-state common law marriage.

Question 16

Most states will enforce a premarital agreement as a valid contract if it is:

Answer 16

In writing and signed by both parties;

Executed after full disclosure of the property and financial obligations of both parties;

AND

Voluntary

Question 17

courts will consider the following factors to determine whether a premarital agreement was voluntary:

Answer 17

The presence of independent legal counsel;

The length of time between the agreement and the marriage;

The sophistication of the parties;

AND

The presence of other pressing reasons to proceed with the marriage (e.g., a pregnancy).

Question 18

Under the Uniform Premarital Agreement Act (UPAA), the party against whom enforcement is sought must prove that the agreement was:

Answer 18

NOT voluntary;

OR

Unconscionable when it was executed
AND
that he or she did not receive or waive fair and reasonable disclosure
AND
did not have, or reasonably could not have had, an adequate knowledge of the other’s assets and obligations.

Question 19

Most courts decide child custody according to…

Answer 19

… the best interests of the child
at the time of the custody hearing, regardless of any premarital agreements.

Question 20

Parents have an absolute obligation to…

Answer 20

…support their children. A premarital contract CANNOT adversely affect a child’s right to support under any circumstance. Such agreements are NOT binding on the court and are unenforceable.

Question 21

Premarital agreements that limit a spouse’s support during marriage are..

Answer 21

… generally void as against public policy.

Question 22

In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are…

Answer 22

… void as against public policy.

Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support (e.g., welfare).

Question 23

What is the putative spouse doctrine?

Answer 23

The putative-spouse doctrine permits a would-be spouse, who participated in a marriage
ceremony with a good-faith but mistaken belief in its validity, to be treated like a spouse for
purposes of equitable distribution of the property acquired by the couple during their invalid
marriage.