Marriage Flashcards
Grounds for challenging premarital agreement
duress
unconscionability at time of execution -
duress for premarital agreement
time pressure, surprise, whether parties had equal degrees of economic education or sophistication, whether both were represented by counsel
unconscionability for premarital agreement
must show lack of economic disclosure.
- never explicit disclosure by other party about wealth or assets
- lack of independent knowledge of other party’s wealth
- did not waive economic disclosure
marriage license
need license - as you must have capacity and be of sound mind, suitable age. state official inquires into capacity. license is good for 60 days
marriage ceremony
ceremony - need valid officiant, who is member of clergy of any religion, judges, or other appointed official, if everyone of some religion counts, no one of that religion can be officiant.
need to exchange promises - declaration of entering into new status
curative statute
any defect in license or lack of authority in officiant will not affect validity of marriage as long as acted in good faith
marriage requirements
license and ceremony
annulment
based on any ground predating marriage - look backward before marriage. available if marriage is void or voidable
void marriage
if void, not married at all and don’t need annulment. annulment is not necessary but helps to have clarity of the record - establish marriage does not exist in databases and resolve collateral issues like money and kids
grounds for void marriage
bigamy - cannot marry if already married.
consanguinity - incest. cannot marry ancestors, descendants, siblings, lineal relatives up or down one generation
can marry first cousins
grounds that make marriage voidable
one party was under 18 at time of marriage - waived if continue to cohabit after party turns 18
duress- force someone into marriage. waived if cohabit after duress is over
mental incapacity - mental illness, under influence of drugs or alcohol at time of marriage, advanced age, developmental disabilities - waive if cohabit after incapacity passes (age and developmental disabilities cannot be waived)
incurable impotence - inability to have sex. waive if you decide to stay married despite impotence
fraud - misrepresentation of essential aspect of marriage - lying about sexual relations/ability to have kids - concealment only grounds if not obvious to other party
failing to disclose you were previously convicted of felony
failing to disclose you are carrying another man’s child/another woman is carrying your child
failing to disclose you previously worked as a prostitute
voidable marriage
actually married, need annulment
civil procedure of divorce
go to circuit court, need subject matter jurisdiction to allow entry of decree to dissolve marriage. one spouse. must be domiciles in Va. and be a bona fide resident of the state for 6 months. SMJ is only sufficient to allow adjudication of divorce, but alimony and property require personal jurisdiction over those things
divisible divorce
decree of divorce in one state where P spouse is domiciled, property division in state B because that’s only place to get personal jurisdiction over that spouse
venue for divorce
preferred venue rules - so if file in venue not preferred, court can transfer to preferred venue on request of either party.
wherever they last lived together, wherever defendant spouse currently lives, or where plaintiff spouse lives if defendant spouse lives out of state.
divorce a vinulo matrimonii
divorce from bonds of matrimony - absolute divorce
grounds for fault based divorce
adultery, sodomy, buggery outside of marriage
conviction of felony involving sentence of 1 year or more occurring during marriage
desertion - unjustifiable departure of at least 1 continuous year
physical and mental cruelty - cruelty that poses danger to life or health of other spouse. mental cruelty can include persistent humiliation, abusive speech, mockery/ridicule, but mere bad temper is not enough
defenses to fault based divorce
condonation
connivance
recrimination
statute of limitations
condonation
waiver, requires innocent spouse to be aware of conduct, forgive conduct, and resume cohabitation - requires spouse to have commitment to not repeat injurious conduct
connivance
spouse lured you and duped you into engaging in the alleged misconduct
recrimination
offsetting conduct - basically if spouse 1 tries to get fault based divorce because spouse 2 engaged in adultery, but spouse 1 has also engaged in adultery
statute of limitations in adultery
5 year limitation on adultery action
fault based divorce
divorce for certain enumerated faults. to get fault based divorce, must have sufficient corroboration - cannot get based on uncorroborated testimony of plaintiff spouse
no-fault divorce
if both parties want divorce, they have no minor children, and they can negotiate separation agreement resolving collateral issues on their own, they must only separate for 6 months to get divorced
if any of those conditions are missing, must be separated for one full year.
divorce a mensa et thoro
divorce from bed and board - legal separation
judicial permission to live out of home without accusation of desertion.
does not preclude from later seeking absolute divorce. but f ground that s basis for absolute divorce existed at separation, cannot rely on that ground again to get fault based divorce
if you reconcile, can get decree revoked
grounds for divorce a mensa et thoro
physical or mental cruelty - rational basis to believe violence will occur
desertion - abandonment does not have to be full year, just no intent to return
separate property
anything acquired before marriage, gift or inheritance received after date of marriage by either spouse in their sole name, property acquired after separation, pain and suffering component of any tort recovery awarded, passive income on any assets that are separate property
marital property
everything acquired after marriage outside of separate property. does not matter whose name is on title, who earned money to buy it.
increase on value of separate property from active efforts of a party is marital property, not separate
rules of division of property
each party keeps own separate property. marital assets are divided by equitable distribution. court considers age and health of spouses, duration of marriage, circumstances contributing to breakdown of marriage (marital fault, even if no-fault divorce), whether assets are liquid/nonliquid and if it makes sense to give one type of asset to one of the spouses, respective income, custody, tax consequences, and whatever else is appropriate to consider
division of debts
treat debts like assets that have negative value, can have separate debt or marital debt.
division of pension
dictated by ERISA
requires order from court conforming to certain things outlined by statute
alimony/spousal support
duration has been getting shorter, amounts smaller, etc.
lump sum - can have one lump sum of spousal support. makes sense if age disparity when one spouse is older and in poor health
periodic payment can be indefinite or time limited
can get in divorce a mensa or divorce a vinculo
factors considered in determining amount and length in spousal suppport
age and health of parties, job skills, educational attainment, respective income, contribution to family wealth (being stay at home spouse counts), property each party has, fault in divorce, anything else the court considers
can you receive alimony if you committed adultery
generally, adultery is an absolute bar to alimony unless denial would result in manifest injustice
modifying spousal support payment
show change in circumstances - like change in payer’s circumstances (lost job), change in payee’s circumstances
modification is prospective only, cannot change past due alimony
termination of alimony
death of either party, remarriage of recipient
enforcement of alimony
go after paychecks through garnishment, go after assets through asset seizure - go to court that issued order and go after assets - first for liquid assets, then tangible personal property, then real property, petition to hold someone in contempt of court
