Getting Married Flashcards
What is marriage?
Creation of the status of husband and wife, once this unity has been formed the creates certain liabilities to each
What is the rule with gifts in contemplation of marriage?
If the marriage does not take place the gifts must be returned
What are the limitations on who may marry?
- Age - GR: 18, can be lower in some states where there is parental and/or judicial consent
- Consanguinity and affinity - GR: Too closely related, blood relatives, persons related by previous marriage, step relations and adopted relations
- Sex of Parties - GR: DOMA’s full faith and credit is still in effect
- Mental Capacity - GR: Must have the capacity to voluntarily enter into the marriage
- Physical Capacity - GR: A person must possess the capacity for intercourse to be married
- Bigamy or Polygamy - GR: To be married both parties must not have any prior undissolved marriages
What are the procedural requirements to be married?
GR: License and solemnization
- License = 1. Medical examination (no std’s), and 2. Waiting Period, generally must wait 72 hours after applying to get a license
- Solemnization (person vested with the power to marry) = 1. Completion and filing license (completed by the solemnizer), 2. Proxy marriage, some states allow, absent party must authorize in writing and a 3rd party acts as the proxy
What are the requirements for state of mind to be married?
- Capacity and Consent - Determined at the time the ceremony takes place
- Intent - Undone by duress, coercion, etc.
- Marriage for a Limited Purpose - (e.g. for immigration benefits)
What is marriage at the common law (elements) (abolished in most states)?
- An exchange of consents between 2 people - GR: More than mere cohabitation, expectation of permanence, exclusivity and children
- Cohabitation
- Holding out to live together as husband and wife
* No length of time required, just need to meet the basics of the elements
What are premarital contracts?
GR: Between prospective spouse and called “antenuptial” agreements, provide for a distribution of assets upon the dissolution of the marriage
What is consideration for an antenuptial?
GR: Entry into the marriage is sufficient
Does the SOF apply to an antenuptial agreement?
Yes - must be in writing and signed by the party charged;
EXCEPTIONS - if oral detrimental reliance may be shown to by pass the SOF
The Uniform Premarital Agreement Act (UPAA) has been adopted by most states, what may parties K to?
- Rights and obligations of property of each of them
- Right to sell, buy, lease or assign property
- Disposition of property upon dissolution, death, separation or any other event
- Modification or elimination of spousal support
- Making of a will or trust or other arrangement to carry out the provisions of the agreement
- Ownership rights and disposition for life insurance policies
- Choice of law governing the construction
- Any other policy not in violation of a criminal statute
How may an antenuptial agreement be amended or revoked?
Written agreement by both parties, the amendment or revocation is enforceable without further consideration
How are antenuptial agreements enforced by the courts? (what is taken into consideration?)
- Voluntariness
- Full Faith and disclosure (honesty when disclosing)
- Fair Provision
- independent Counsel (increases likelihood of enforceability)
- UPAA Requirements - Voluntariness, and cannot be unconscionable
What is the choice of law on the antenuptial agreement?
- If no choice of law in the agreement than use the laws of the state where the agreement was created or the state wit the most significant relationship to the parties
When may a court disregard provision of the antenuptial agreement?
If one of the spouses would become a public charge, because they are not being left with that much
Is the antenuptial agreement void if the marriage was void?
Only to the extent to avoid injustice
