Marriage

Question 1

Antenuptial Contracts

Answer 1

Parties to a marriage may enter into an antenuptial contract by which they can make agreements regarding alimony. However, a court may not enforce the agreement if it leaves the disadvantaged spouse a public charge. Further, child custody and support provisions may be void against public policy or subject to judicial review.

Antenuptial contracts must be in writing, voluntary, and based on full and fair disclosure of each party’s financial worth.

The court will consider each provision to determine whether it is fair and does not violate public policy.

Question 2

Antenuptial Contract Governance

Answer 2

An antenuptial contract may have a choice of law provision. If it has none, it will be governed by the laws of the state where it was executed or with the most significant relationship to the parties.

Question 3

Marriage Licenses

Answer 3

Persons intending to marry usually must obtain a license; however, a failure to meet the procedural requirements of a license will not invalidate a marriage.

Question 4

Marriage Requirements

Answer 4

To marry, there must be no legal impediments and a capacity to consent.

Question 5

Legal Impediments

Answer 5

If there is a legal impediment (bigamy/first cousins marriage/etc) the marriage will be void meaning it is invalid and the parties can walk away with no legal action. However, an annulment may be brought.

Question 6

Capacity to Consent

Answer 6

If there is no capacity to consent, the marriage may be voidable. A voidable marriage can be ratified by continued habitation which means it cannot be annulled.

Question 7

Doctrine of Necessities

Answer 7

Under the doctrine of necessaries, one party may be liable to third parties for the other spouse’s necessary expenses.

Question 8

Regulations of Marriage

Answer 8

Any regulations of marriage, because it is apart of the right to privacy, will be subject to a strict scrutiny review.

Question 9

Jurisdiction generally

Answer 9

Jurisdiction is appropriate where one of the parties is domiciled and it is possible for multiple states to have jurisdiction. To determine financial issues, the court must have personal jurisdiction over the defendant AND the plaintiff.

Question 10

Full faith and credit of divorce decrees

Answer 10

Divorce decrees are entitled to full faith and credit as long as the original state had jurisdiction to issue the decree and the decree is valid in the original state.

Question 11

Types of divorce

Answer 11

A divorce may be no-fault or fault.

No fault:

• both spouses agree that the marriage is irretrievably broken
• the parties have been living apart for a specified and continuous period of time. The period is shorter if both parties agree to divorce and longer for unilateral divorce.
• Both parties agree they are now incompatible and can no longer be married
• Defense: one spouse can claim that reconciliation restarted the clock for living separate and apart

Fault:

• Adultery
• Willful desertion
• Extreme physical or mental cruelty
• Drug addiction or habitual drunkenness
• insanity

Question 12

Legal Separation and Separation Agreements

Answer 12

A legal separation does not terminate the marriage, but the parties may have all of their rights adjudicated. A separation agreement can be entered into, where the parties may resolve economic issues and can waive alimony or property division, and agree on child custody issues (though the court is not bound on child issues).

Question 13

Three approaches to the division of property

Answer 13

There are three approaches to the division of property in a divorce: community property, equitable division of all property, and equitable division of marital property. In equitable division states, equitable does not necessarily mean equal, but is judicially determined.

Question 14

Marital Property

Answer 14

All property obtained during the marriage is marital property unless it was received by bequest, gift, devise or descent.

Question 15

Equitable Division

Answer 15

In all states, the property will first be classified as marital property and separate property. It will then be divided appropriately at the discretion of the court. Factors in dividing the marital property equitably include the duration of the marriage, the standard of living, the present incomes of both parties, the health of the parties, the needs of the parties, contributions as homemakers, and so on.

Question 16

Alimony generally

Answer 16

Alimony may be paid as a periodic payment or a lump sum, and it may be paid as rehabilitative support or reimbursement support. The purpose of alimony is to ensure an adequate income stream for the economically dependent spouse if that dependency resulted, in part, because of the marriage.

Question 17

Alimony discretion

Answer 17

Alimony awards are at the discretion of the court, and periodic payments and rehabilitative support are modifiable by the court. A court may consider the standard of living, duration of the marriage, financial resources, contributions of each party during the marriage, and even marital fault. Very important are the needs of the claimant and the ability of the other party to pay.

Question 18

Permanent spousal support

Answer 18

Permanent spousal support will be awarded to a spouse who has neither the resources nor the ability to be self-sustaining.

Question 19

Rehabilitative support

Answer 19

A court may award rehabilitative support to enable the other spouse to gain skills to increase their earning capacity and reduce their reliance on the other spouse.

Question 20

Reimbursement support

Answer 20

Reimbursement support may be awarded to a spouse who supported the other while they got a degree. It is not modifiable.

Question 21

Common Law marriage

Answer 21

Basic requirements to establish common law marriage are capacity, exchange of consent, cohabitation and holding out publicly as spouses.

Question 22

Holding out for common law purposes

Answer 22

Courts look to conduct, such as using a common last name, joint accounts and telling others they are married