Getting Married Flashcards
What is marriage?
The legal union of two individuals
What are the two controversies that may arise in anticipation of marriage?
(1) Breach of promise to marry – quasi-tort/quasi-contract; recovery allowed for actual damages (money spent in preparation) and loss of reputation, personal injury (mental anguish/health) and punitive. Not available in most states anymore.
(2) Gifts in contemplation of marriage – action to return a gift made in anticipation of marriage (usually the engagement ring).
Test: consider the type of property, conditions attached, and donor intent
What can be effectively agreed to in prenuptial agreements?
Prenups can make binding agreements about the disposition of property at divorce and alimony (will not be upheld if it causes the disadvantaged spouse to become a public charge).
Prenups cannot make binding agreements as to child support or child custody.
What are the requirements for a valid prenuptial agreement?
(1) in writing, signed by both parties
(2) Entered into voluntarily (no fraud, duress, etc)
(3) full and fair disclosure of assets or proof the party had independent knowledge
(4) economic provisions fair and reasonable
Under the Uniform Premarital Agreements Act, adopted in most states, courts must first determine that an agreement was unconscionable before looking to whether there was full and fair disclosure/independent knowledge
What state’s law governs a prenuptial agreement?
(1) the state law agreed upon by the parties, or
(2) the law of the state with the most significant relationship to the parties/transaction, or
(3) the law where the agreement was executed
What are the four requirements of formal marriage?
(1) License
(2) Ceremony by an authorized officiant
(3) No legal impediments to marriage
(4) Capacity to consent
What happens when the license requirements aren’t met?
Failure to meet procedural requirements will not invalidate an otherwise valid marriage
What are the possible legal impediments to marriage?
(1) too closely related (cannot ever marry ascendants, descendants, aunts, uncles, nieces, nephews by whole or half blood, in most states cannot marry step/adoptive relations or relations by marriage, and in some states cannot marry first cousins)
(2) existing marriage to someone else
**A marriage with these impediments is VOID
What are the capacity requirements?
Must have the mental ability to consent (not too intoxicated, mentally disabled to consent) and must be of the age of majority or have the required parental/judicial consent
**A marriage with these capacity issues is VOIDABLE
What are the requirements of a common law marriage?
(1) Must also have no legal impediments
(2) Must also have capacity
(3) Consent to marry not just consent to cohabitation
(4) cohabitation
(5) Hold yourself out publicly as married
A common law marriage valid in the state it was entered into will still be recognized as valid in states where common law marriage is not an option
What is marriage by estoppel?
AKA putative marriage
An equitable remedy given to an innocent party who acted in good faith entering into an invalid marriage. May in some states be able to assume all the rights of a legal spouse
