Marriage Flashcards
What is marriage?
a civil contract
both parties have capacity to consent
exchange of consideration in form of promises
Types of Marriages
Ceremonial & Common Law
Termination of Marriage contract
only be terminated or modified with state intervention
Ceremonial Marriage
License & Solemnization
Licensing
- Age requirement(18) or parental consent
- waiting period between license & ceremony
- Premarital medical testing (results can’t be condition for issuance)
When will a license not be issued?
party is already married, parties are related, marriage is a sham, parties are incapable of understanding because of fraud or duress.
Solemnization Requirement
2 witnesses, officiant, marriage license filed with appropriate government office, proxy may be applicable if person unable to be present (incarceration or military).
Common Law Marriage Requirements
Capacity to Marry, consent, cohabitation, conduct (hold themselves out as married)
- no license or solemnization is required
- no minimum time period to establish CL Marriage
Recognition of Common Law Marriage
Even if state does not follow Common Law, they will recognize a marriage in another stats under the Full Faith & Credit Clause
Heartblams Actions
Historically, civil tort actions from money damages based on broken engagement or cheating. No longer recognized.
Three ways to End a Marriage
Annulment, Divorce, Death
Annulment
Judicial decree that voids marriage
Void marriages (annulment)
any party may seek & does not require judicial decree
Reasons:
- prior marriage
- incest
-mental incapacity
Voidable Marriages
A party to the marriage may seek & requires judicial decree
Reasons:
-age (under 18)
- impotency UNLESS knew about prior to marriage
- intoxication UNLESS cohabitate after marriage & ratify
- Fraud, misrepresentation, duress, etc.
- Lack of intent UNLESS been consummated
Defenses to Annulment
deny the impediment
may still pursue a divorce
Putative Marriage
Equitable Remedy applies to protect a party who believes their marriage is valid
Divorice Residency Requirements
At least one party must be a resident of the state
No Fault Grounds
irretrievably broken
- May need to live in a state of separation
- one spouse desire to reconcile will not prevent the divorce
Fault Based Grounds
Adultery, Bigamy, Cruelty, Desertion, Habitat Drunkenness, Imprisonment, Indignity, Institutionalization
Adultery
Sexual intercourse with someone other than their spouse
- charging spouse has the show the opportunity & inclination
- can use circumstantial evidence
Cruelty or Inhumane Treatment
Requires more than one time
- physical harm (only a few JD allow for mental or emotional abuse)
Desertion
Spouse leaves without cause or conduct from other spouse
Habitual Intoxication
Alcoholism isn’t a requirement
- freq. impairment causes issues in the marriage
Recrimination & Clean Hands
both spouses compete a marital wrongful act of like conduct
Unclean Hands: a common defense to an at-fault divorce when the P’s own behavior is in question
Connivance
spouse gives consent to participate in marital wrong
Condonation
forgives for wrongful act, must have knowledge and resume marital relations after finding out
When will a marriage license not be issued?
related, bigamy, sham, incapacity
Evidence Intent for Common Law Marrriage
Words in the present tense
cohabitation (this alone is insufficient alone) or reputation evidnece,
Can you modify equitable distribution
No, changes in the parties circumstances after divorce are not considered after award has been entered.
Separation Agreements at Divorce
merged into final judgement for divorce as long as they ar full and fair
Upholding a Separation Agreement
unconscionable if the agreement was made under unfair terms for one party
Premarital agreement choice of law
signficant relationship test: the law of the state that has the most significant relationship to agreement or marriage
