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Family Law > Marriage > Flashcards

Marriage Flashcards

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1
Q

what are some of the privileges of marriage

A

between parties: alimony, division of property, presumed parent, evidence privilege

to third parties: pension, right to sue, medical decisions

to gov: benefits, migration, less intrusion

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2
Q

what can we restrict marriage based on

A

age
incest
bigamy

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3
Q

is marriage a basic right

A

yes – gets SS

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4
Q

what is the test for if a statute fucks with the right to marry too much

A

if it SIGNIFICANTLY interferes with right to marry

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5
Q

what does significant interference with right to marry mean

A

is the purpose to interfere? is it a direct obstacle?

basically – you can’t get married cause of it

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6
Q

is delaying marriage a significant interference

A

no

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7
Q

what is it important for gays to marry

A

liberty, fundamental right, safeguards families, keystone of social order

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8
Q

states have to issue marriage licenses and recognize out of state gay marriage but does sexual orientation get SS

A

nope

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9
Q

what are the two kinds of incest

A

consanguinity
affinity

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10
Q

what are the restrictions for consanguinity

A

can’t do it

Oregon says: no first cousins or nearer but adoption only cousins are ok

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11
Q

what are the restrictions for affinity

A

basically none

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12
Q

what is the rule of lenity

A

the interpretation of a state must be construed in way most favorable to criminal ∆

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13
Q

what is / isn’t morality

A

morality is sincere and consistent, not prejudice, emotional reaction

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14
Q

what’s the usual age of consent

A

18 - 21

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15
Q

how old can you marry with parental permission

A

Oregon - 17

majority of states - 16

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16
Q

policy consideration around age of consent

A

if marriage is ok under an appropriate age do we even need parental consent

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17
Q

what are the requirements for consent

A
  • lack of coercion
  • capable of assuming/understanding responsibilities of marriage
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18
Q

how do you just mental capacity to enter marriage

A

if party is incapable of understanding nature effect and consequence of marriage

judged at time of marriage. immaturity is not mental incompetency

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19
Q

are underage marriages or marriages without the requisite permission voidable

A

yes generally

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20
Q

does age requirement for marriage get SS

A

no – just delays, doesn’t significantly interfere

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21
Q

what are the state interests for age reqs

A

protect kids, teen marriages not stable

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22
Q

how is age req over and under inclusive

A

some mature kids and some real bad parents

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23
Q

purpose behind prohibition on polygamy

A

-protect marriage as social institution
- prevent fraud against spouses and gov
- protect from exploitation
- men are nuts
- dependence on state

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24
Q

does first amendment protect bigamy

A

no – it protects the ability to believe, not ability to do conduct

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25
Q

what is an annulment

A

declaration that no marriage existed due to an impediment at time of creation of marriage

26
Q

what kind of marriages are void/voidable

A

bigamy, incest = void

fraudulent, underage = voidable

27
Q

what’s the policy difference between void and voidable

A

void = society condemns

voidable = concern about coercion

28
Q

what’s ratification

A

when a party with full knowledge of the impediment to the marriage continues to act like they are married. takes away option of voiding a voidable marriage

29
Q

what if a marriage is void from the start (void ab initio)

A

courts will not recognize, annul retroactively

30
Q

is divorce a remedy for void / voidable

A

void = no, because never existed

voidable = yes

31
Q

will kids of an annulment be bastards

A

no

32
Q

who can challenge validity of the marriage and when

A

third parties can challenge void marriages at any point.

some states only allow marriage to be challenged up to 5 years after divorce.

voidable marriage can only be challenged while parties are alive

33
Q

what are other equitable defenses to void/voidable

A

unclean hands, estoppel

34
Q

what are two approaches to conflicts

A

Traditional: lex loci
- if marriage is valid where performed, it’s valid everywhere unless there’s a strong public policy reason
- applies to common law too

Restatement
- validity is determined by laws of state with the most significant relationship to the spouses

35
Q

what is the problem with traditional lex loci approach to conflicts

A

evasionary marriages

36
Q

what factors will a court consider for the restatement approach to conflicts

A
  • predictability
  • maintenance of state’s relationship to spouses
  • administrability
  • state’s interests
  • court’s preference for which law they like

basically ask which state has more significant interest

courts favor validating long term relationships

37
Q

what are two kinds of laws that solve conflict of law problems

A
  1. marriage evasion statute (says if you go get married in a way that’s illegal here, we ain’t counting it)
  2. validation statute (all marriages valid at time of k or subsequently validated by the state they happened in are valid here too_
38
Q

what will the court usually do in incidents of marriage

A

o In a situation where a long established married couple moves to a place they cannot be married, the state will usually give foreign marriage validity in the state.

39
Q

is a limited purpose marriage valid

A

yes it is validated for all purposes

40
Q

can you get annulment for limited purpose marriage

A

nope just divorce

41
Q

what do we need for marriage

A

basically intent and capacity

42
Q

will being an 81 stop you from marrying

A

no

43
Q

why is the test for mental capacity so low for marriage

A

administribility, we want people to get married and benefit from marriage

44
Q

defenses to marriage

A

drugs and alcohol

fraud and duress

45
Q

what are the factors to consider for drug and alcohol defense to marriage

A
  • pre existing relationship
  • ceremony
  • intent
  • involuntary intoxication
  • how long ago did it happen and did you ratify it with action
46
Q

what do we consider for fraud and duress

A

the fraud has to go to an essential of the marriage. could be willingness to have kids, sex.

47
Q

what do you need procedurally to get married

A

license and solemnize

48
Q

why does the state have an interest in solemnizing

A

require people to hold out as married, forces people to recognize importance

49
Q

can you be married by proxy

A

uniform marriage and divorce act says yes but must consumate

50
Q

can you get an annulment if you claim the officiant wasn’t real. like say he was an indian

A

not if you previously said he was legit and you’d get an unfair advantage

51
Q

what is the mock priest statute

A

if either party thinks the priest is legit, the marriage is valid

52
Q

general approach for solemnization

A

law wants to give benefit of marriage to those who think they are married

person attacking the validity of solemnization has burden of rebutting that it was valid

53
Q

what do we presume about getting married

A

-marriage is valid
-formalities were complied with
-ceremony was proper
-parties have capacity

54
Q

what does a covenant marriage require

A
  • mandatory premarital counseling
  • agreement to go to counseling to overcome issues
  • limits grounds for divorce, dependent on misconduct, more waiting
55
Q

what if a covenant marriage moves to state that doesn’t have it

A

state will apply its own laws

56
Q

what are the elements of common law marriage

A
  1. agreement to marry presently (intent)
  2. cohab
  3. holding out
57
Q

is common law different than marriage

A

no

58
Q

can you annul a common law marriage

A

no only divorce

59
Q

what is a putative spouse

A

someone who believes in good faith that they are married and is afforded legal rights because of their reliance on that belief

60
Q

what is the presumption for putative if the first and second marriages are both valid

A

stronger presumption that the latest one is the valid one

first spouse can rebut by showing there was no end to first marriage by checking records in ALL jdx they were domiciled in

61
Q

when do you stop being putative spouse

A

find out he’s married

death or divorce, can ripen into regular spouse

Family Law (11 decks)

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