Kaplan Book Pgs 126-130 CP

Question 1

What is the essence of community property law?

Answer 1

Marriage is viewed as a community where each spouse is an equal partner

Question 2

What is the code that applies to the community property scheme in California?

Answer 2

The California family code

Question 3

If there is congressional intent to preempt state law, what happens with regard to community property?

Answer 3

The federal law can preempt the state law on those issues as long as it is clear

Question 4

Generally speaking, what are the rights of each party with regard to community property?

Answer 4

Either spouse can act separately to manage, buy, sell, spend, or encumber community property

Question 5

Who all does community property apply to?

Answer 5

Legally married couples and registered domestic partners as well as putative spouses and spouses by estoppel

Question 6

What is the age requirement for a valid marriage in California?

Answer 6

Each party must be 18 years old

Question 7

What is required for a valid marriage in California?

Answer 7

Consent of each party, each party must be at least 18 years old, and each must be legally capable of consenting to a contract

Question 8

Is it possible for someone to be under 18 and to get married?

Answer 8

Yes, if they have written parental consent and a court order that grants permission to marry. If the minor has no parent that is capable of consenting, then a court order alone is enough

Question 9

Will failure to strictly comply with formalities such as licensing, solemnization, or registration be enough to invalidate a marriage?

Answer 9

No

Question 10

Marriages that are contracted outside of California but are valid in that place, are usually valid in California unless what?

Answer 10

It violates some strong public policy of California

Question 11

If a marriage is void, what does that mean?

Answer 11

It is invalid for all purposes from the moment of its inception

Question 12

What does void ab initio mean?

Answer 12

No legal action is needed to terminate the relationship. This happens when there has been an incestuous marriage or a bigamous marriage

Question 13

What is included in incestuous relationships?

Answer 13

Ones between parent and a child, or between ancestors or descendants of any degree, between half siblings and whole siblings, and between uncle/aunts and nieces/nephews

Question 14

Bigamous marriages are void ab initio, but a later marriage is presumed to be valid when the former spouse what?

Answer 14

– has been absent for five years and is not known to be living, or
– is generally believed to be dead

Question 15

If a marriage is voidable, what does that mean?

Answer 15

It is presumptively valid for all purposes until it is judiciously declared a nullity

Question 16

If a voidable marriage is adjudged to be null, what is the result?

Answer 16

It is as if the marriage never existed

Question 17

What are the six major situations where a marriage is considered to be voidable?

Answer 17

– if either party was a minor
– if one party’s spouse was living even though he had been absent and not known to be alive for the previous five years or was believed to be dead
– if either party was of unsound mind
– if consent was obtained by fraud
– if consent was obtained by force
– if either party was physically incapable of entering the marriage, the incapacity continues, and appears to be incurable. This includes inability to consummate a marriage or importance

Question 18

What is a way that you can rectify most situations that would normally make a marriage voidable?

Answer 18

After a party is no longer a minor, or regains a sound mind, or whatever the issue was is over, if the party then freely cohabitates as husband and wife with the other person, the marriage is valid and no longer voidable

Question 19

When does marriage by estoppel apply?

Answer 19

This gives the same protections that a valid marriage would get under community property rules even though the marriage is invalid if one party induced the other party into the marriage knowing that it was invalid by making promises that were then not kept

Question 20

Usually unmarried cohabitants don’t have community property rights unless what?

Answer 20

There was some enforceable agreement

Question 21

Although California has abolished common law marriage, what will they recognize?

Answer 21

The validity of a common law marriage that was contracted in another state if it was valid in that state

Question 22

What are the two constitutional clauses that provide protection for same-sex marriage?

Answer 22

• Due Process Clause

- Equal Protection Clause of the 14th

Question 23

The Obergefell case provided for what?

Answer 23

– The fundamental right to marry someone of the same sex
- states must license marriages between same-sex couples and recognize marriages between same-sex couples that were lawfully licensed and performed out of state

Question 24

What is the definition of a domestic partnership?

Answer 24

Two adults that have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. These only apply to same-sex couples and to elderly opposite sex couples

Question 25

What is required to register to be recognized as a domestic partnership in California?

Answer 25

The partners must file a declaration of domestic partnership with the Secretary of State and meet these requirements:
– not be married to someone else or a member of another domestic partnership
– not be related to each other
– be at least 18 or have court approval
– be capable of consenting
– be either the same sex, or be over 62 years old and eligible for old age insurance benefits

Question 26

Once you have successfully registered as a domestic partnership, what does that give you?

Answer 26

All of the same rights and protections and benefits as married spouses as well as the same responsibilities