MARRIAGE Flashcards
Jurisdiction
- If SPECIFICALLY delegated: FEDERAL
- if NOT: STATE juris. or the PEOPLES
Jurisdiction- DIFF STATES?
Diversity Juris –> FEDERAL
DOMESTIC RELATIONS EXCEPTION
NO power of the federal courts to issues dealing with : DIVORCE, ALIMONY, OR CHILD CUSTODY DECREES
CIVIL UNION
- generally homosexuals (cant get married)
- like marriage with no title
REGISTERED P’SHIP
SOME RIGHTS < civil union < marriage
only recognized in some localities
RECIP. BENEFICIARIES
EX. grandma and grandson
-no sexuality or marriage, just dependent on something
UMDA 208 - INVALIDATION
- lacked CAPACITY to consent (@ time solemniz.)
(mental, alcohol/drugs, fraud induced, etc.) - lacked PHYSICAL CAPACITY (@ time) to consummate by SEXUAL INTERC. and other party UNAWARE
- MINOR (16 or 17) without CONSENT of parents/guardian or judicial approval OR
- marriage PROHIBITED
CONSENT TO MARRY
- CAPACITY to contract
- INTENT to contract
- presumption in favor of marriage
- BURDER on CHALLENGER (show lack of by CLEAR AND CONVINCING)
CAPACITY
need to understand:
- nature
- effect
- duty and obligations (finan./emo. support, etc)
- sexuality (kids as consequence)
INTENT
if consent by: -FORCE (goes to marriage essentials) -DURESS or -FRAUD ...party with CLEAN HANDS may be able to annul
SHAM MARRIAGE
fake marriage, typically to obtain visa to enter US
MARRIAGE FRAUD ACT 1986
- prevent marriage fraud
- alien receives COND. ADJ. of STATUS
- marriage sincere? 2. 2 YR WAITING–> if bona fide, cond. removed n get perm. resident status
IF DEPORTATION ISSUES @ TIME OF MARR.:
- leave for 2 YRS be4 retain adj. status
- 2 YR req. whether SHAM or BONA FIDE
- inquiry done AFTER 2 YR
* not UNCONST. bc RATIONALLY REL. LEGIT. INT.
SINCERITY OF MARRIAGE FACTORS
- length of time know each other
- freq. of meetings prior to marriage
- present live together or have
- married ONLY after one subj. to investigation, removal, deportation issue
WAITING PERIOD (btwn marriage license and solemnization)
- 75% of states
- MOST say 3 DAYS (range 1-10)
UMDA 203- PROOF B4 CLERK, LICENSE
MARRIAGE APPLICATION:
1. completed and signed by BOTH
2. at least ONE appear before clerk
LICENSING:
1. proof each is 18 @ TIME or 16 with CONSENT or JUD. APPROV. AND
2. satisfactory proof marriage NOT PROHIBITED AND
3. cert. of med. exam. results req. by state law
UMDA 206- SOLEMNIZATION
- JUDGE of court court record
- PUB. OFF. whose power includes solemn.
- in accordance with RELIGION
- 1 complete cert. form and forward to clerk
- if party unable to be present, may auth. 3RD PARTY to act as PROXY
- upon receipt of marr. cert., clerk registers marriage
- not invalid if person solemnizer not legally qualified, if either party believed him to be
COMMON LAW MARRIAGE
NOT RECOGNIZED BY MANY
- contractual CAPACITY
- INTENT by both
- NOTICE and “HOLDING OUT”
* clear and convincing
UMDA 209- PUTATIVE SPOUSE
- COHABITATION
- not LEGALLY MARRIED
- GOOD FAITH believe married
CONST. LIMIT. ON STATE MARR. REGULATION
if statute significantly interferes with the exercise of a fundamental constitutional right, MUST PASS STRICT SCRUTINY (compelling and necessary)
*no race, nationality or religion
VOID MARRIAGE
- non existent and never existed
- annulments and dec. judg. useful to protect against BIGAMY
- can be attacked even after death of ONE
EX. incest, married to someone else, below min. age
VOIDABLE MARRIAGE
- effective until formally voided (annulled)
- invalidity asserted only if BOTH ALIVE
- once VOIDABLE became VOID, treated as NON EXISTENT
EX. above min. age but lack consent, fraud/duress, absence of formal requirements (med exam)
PARTIALLY VALID
half and half
CONFLICTS OF LAW- VALIDITY
- law where CELEBRATION takes place
- if meets req. of state were happened, accepted everywhere EXCEPT
- PUB POL. of place with most sign. rel. to both
- domiciliary of one state goes to another to avoid own states req.
- can accept if evidence shows DID NOT INTEND TO EVADE or NO PUB. POL. violation
BIGAMY
marriage to one while married to another
- civil and crim. liabilities
- crime but rarely enforced with crim. punish.
BIGAMY DEFENSES
“ENOCH ARDEN’ STATUTE
- 1st disappeared for several years before 2nd
- some states allow absent to be declared dead
- at least 50K mormon engage in polygamous
GOODRICH V. DEPT. PUB. HEALTH
MOST COURTS REJECT MAJ. DECISION
- Const. right to marry same sex in MASS
- same sex marriages subj. to RATIONAL SCRUTINY
1996 DOMA
-defined marriage as btwn man and woman
-no state/territory must recogn. same sex marr.
2006- at least 41 states
DOMA (NOW)
- no fed. $
- no req. to recog. if married legally elsewhere
- male to female marriage
- right now DOMA CONSTITUTIONAL
- MAJ–> gender determined at birth
TRANSEXUALS and UNRELATED BY BLOOD
-TRANS–> no pub. pol. prevents
- INCEST A CRIME
- 24 states NO FIRST COUSIN
- ADOPTIVE SIBLINGS–>
- no viol. of pub. pol.
- no detriment to kids
UMDA 205- MINOR CONSENT, JUD. APPROV.
after reason. efforts to notify parents/guardians, may issue license and cert.:
-IF 16 or 17 with NO PARENT to consent OR has but WONT CONSENT, IF capable of ASSUMING RESP. AND serves BEST INT.
EXCEPTION TO FORMAL REQUIREMENTS
COMMON LAW MARRIAGE
- FULL FAITH AND CREDIT
- same rules unless goes against PUB POL
- FL DOES NOT ACCEPT
- stat. prov. that allow IF existed b4 disallowed
- if one DIES or TERM. ILL, brought within 1 YR
BURDEN ON PARTY CLAIMING IT EXISTS
LEGAL STATUS OF MARRIAGE
- legal support obligations
- prop. rts, compen. damages, and evid. privileges
- affects TAXES one owes AND PUB. BEN. received
CL PROPERTY STATES
“MARRIED WOMENS PROP. ACTS”
-title determines asset ownership and management rights
COMM. PROP STATES
- 9 STATES
- individual earnings DURING become JOINT
MC GUIRE RULE
cannot mainitain a suit in equity to secure SUPPORT or ALIMONY when the parties are not separated or living apart
“NECESSARIES DOCTRINE”
PROVIDER OF THE SERVICES MUST SHOW:
- services/ goods were provided to spouse
- necessary for health and well-being
- person who against brought, was married to recipient AT TIME AND
- payments for necessaries has not been made
SPOUSAL CONSORTIUM CLAIMS
- CL–> hubands file action if wife INTENT. injured
- CURRENT–> BOTH, whether INTENT. or NEG
MARRIED WOMEN’S PROPERTY ACT
- once DISSOLUTION, gov. doesnt interfere
- BOTH adequately protected
- if need HOSP.- NEED FOR GOV. INTERF.
- Temp. Rest. Ord
- reas. belief
- to prevent violence
MARITAL SEX OFFENSE IMMUNITY
- under common law, permitted to RAPE WIFE
- TODAY may raise claim
PRENUP
- marriage is consideration
- DISCLOSURE, closer fiduciary relationship, greater discl. req.
- SIGNATURE, of person whom it is enforced
- VOLUNTARILY
VALIDITY OF PRENUP AGREEMENTS
FAIRNESS
- procedural
- substantive
