Marriage

Question 1

What can a prenuptial agreement cover?

Answer 1

Under the UPAA, prenups can cover anything that is not in violation of public policy.

The parties can waive alimony, unless it leaves the disadvantaged spouse a public charge.

Parties can include child custody and support provisions, but they are not binding on a court.

Property division must be fair and reasonable.

Question 2

What are the requirements for a valid prenup?

Answer 2

1. Signed
2. In writing
3. Voluntary
4. Based on full and fair disclosure of each party’s financial worth

Question 3

When will a prenup be unenforceable?

Answer 3

1. Involuntary, or
2. Unconscionable when executed and spouse was not provided full/fair disclosure of the parties’ assets or did not have independent knowledge of the assets.

Question 4

What are the requirements for a valid marriage?

Answer 4

1. License
2. Ceremony with an authorized officiant
3. Capacity to consent
4. No legal impediments

Question 5

What are legal impediments to marriage?

Answer 5

Incest and bigamy.

Question 6

What are the required elements of a common law marriage?

Answer 6

1. Consent to marry
2. Cohabitation
3. Holding themselves out publicly as spouses

**If a valid common law marriage is formed in one state, it will generally be regarded as valid even in states that don’t recognize common law marriage.

Question 7

What is the doctrine of necessities?

Answer 7

Spouses are required to pay for each other’s necessities, and are liable to a creditor who has provided such necessities.

Question 8

What is annulment?

Answer 8

A doctrine that declares a marriage invalid because an impediment that existed at the time of the marriage makes it legally void or voidable.

Question 9

What is a void marriage?

Answer 9

An utter nullity. No legal action is needed to end it, and third parties can seek an annulment of a void marriage.

If the impediment is removed, some states allow the marriage to become valid if the parties continue to cohabitate.

Examples: bigamy, polygamy, incest

Question 10

What is a voidable marriage?

Answer 10

A marriage that is valid until declared null. One of the spouses may bring an action to have the marriage annulled.

Examples: nonage, incurable physical impotence, lack of capacity, duress, fraud

Question 11

What is sufficient for “holding out” under common law marriage?

Answer 11

1. Common last name
2. Opening a joint bank account
3. Telling others in the community that they consider themselves married

Question 12

Enforceability of property division contracts between unmarried cohabitants

Answer 12

Will be enforced if sexual relations are not the only consideration.