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Family Law > Marriage > Flashcards

Marriage Flashcards

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1
Q

Marriage License Requirements

A
  1. Capacity to Marry (i.e., minimum age restrictions, parental consent for young)
  2. Waiting period between date of license application and date of issuance or ceremony
  3. Medical testing (some states)
  4. Expiration date
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2
Q

When is a Marriage License Not Issued?

A
  1. One party already married
  2. Parties are too closely related
  3. Marriage is a “sham”
  4. The parties are incapable of understanding the nature of the act
  5. One or both is under the influence of drugs or alcohol
  6. A party lacks consent due to duress or fraud
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3
Q

Solemnization

A

The ceremony must be performed in front of two or more witnesses

A judge, political official, or member of the clergy must solemnize a marriage

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4
Q

Common Law Marriage

A
  1. The parties agree they are married
  2. Cohabit as married
  3. Hold themselves out to the public as married

Only 9 states recognize common-law marriage

Conflict of law: a marriage that is valid under the law of the place which it was contracted is valid elsewhere unless it violates a strong public policy

Intent: must be evidenced by words in the present tense - “we are married”

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5
Q

Heartbalm Action

A

Civil suit for money damages based on the damage to a jilted party’s reputation

Abolished in most states

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6
Q

Annulment

A

Voids a marriage and declares it as having never been valid

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7
Q

Void Marriage

A

Treats the marriage as if it never happened, does not need to be judicially dissolved

  1. Prior existing marriage (some states allow it to become valid if one party had good-faith belief the marriage is valid and the impediment is removed)
  2. Incest
  3. Mental incapacity
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8
Q

Voidable Marriage

A

Valid until a judicial decree dissolves the marriage

Grounds:
1. Age
2. Impotence
3. Intoxication
4. Fraud
5. Duress
6. Lack of Intent

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9
Q

Equitable Distribution of Property in Annulment

A

A party may request an equitable distribution of property, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage

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10
Q

Children of Annulled Marriage

A

Considered marital children

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11
Q

Defense to Void Marriage

A

Deny the existence of the impediment that makes the marriage void - removing it makes it voidable

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12
Q

Defenses to Voidable Marriage

A

Unclean hands, laches, and estoppel

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13
Q

Putative Marriage/Spouse Doctrine

A

A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void

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14
Q

Divorce Residency Requirement

A

One party must be a resident

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15
Q

No-Fault Divorce Grounds

A
  1. Marriage is irretrievably broken and there is no prospect of reconciliation
  2. Irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action
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16
Q

Fault-Based Divorce Grounds

A
  1. Adultery
  2. Cruelty
  3. Desertion (does not apply if parties separate by mutual consent)
  4. Habitual Drunkenness
  5. Bigamy
  6. Imprisonment (one spouse for specified period of time
  7. Institutionalization for insanity (no reasonable prospect of discharge or rehabilitation)
17
Q

Defenses to fault-Based Divorce

A
  1. Recrimination
  2. Unclean Hands
  3. Connivance
  4. Condonation
  5. Collusion
  6. Provocation
  7. Insanity
  8. Consent
  9. Justification
    10, Religion
18
Q

Community Property

A

Equal division of marital property

19
Q

Equitable Distribution

A

Fair distribution of marital property (not equal)

20
Q

Marital Property

A

All property acquired during marriage

Burden of proof on party asserting property is nonmarital

21
Q

Hotchpot Approach

A

All property owned by either spouse is marital property

22
Q

Separate Property

A
  1. Property acquired before marriage
  2. Property excluded by parties’ valid agreement
  3. Property acquired by gift or inheritance (except for gifts between spouses)
  4. Any award or settlement payment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received
23
Q

Factors for Distribution of Marital Property

A

Length of marriage, prior marriages, age, health, earnings, earning potential, liabilities, needs of both spouses, contributions to education, income, medical needs, retirement of both spouses, homemaking and child-rearing services, value of separate property, reduction in valuation in marital property by one spouse, standard of living, economic circumstances of each spouse at time of divorce, custody of any minor children

24
Q

Professional Licenses/Degrees

A

Not a property interest - can effect spousal support

25
Q

Retirement or Pension benefits

A

Marital property if acquired during the marriage (and amount accumulated during marriage)

Workers comp/PI proceeds - in some states if the cause of action accrued during marriage, the proceeds or award are marital property, other states allocate the proceeds or award between marital property and separate property

26
Q

Damages for Pain/Suffering/Disability

A

Separate property of injured spouse

27
Q

Consortium Losses

A

Separate property of non-injured spouse

28
Q

Awards for Lost Wages, Loss of Earning Capacity, and Medical Expenses

A

Split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property) and the portion attributable to loss of wages or medical expenses after the termination of the marriage (separate property)

29
Q

Goodwill

A

The reputation and clientele of a professional practice is considered marital property in some states

30
Q

Accumulated Sick and Vacation Days

A

States are split

31
Q

Expectancy Interest in Property

A

Not distributable

32
Q

Social Security Benefits

A

Not subject to equitable distribution

33
Q

Post-Separation Property

A

Can be marital property (most states)

34
Q

Unexercised Stock Options

A

Marital property if acquired during marriage

35
Q

Tax Consequences of Equitable Distribution

A

Transfer of property between divorcing spouses is tax-free

Transferee’s basis in property - same as transferor’s basis

36
Q

Modification

A

Modification of a property division is NOT MODIFIABLE - the property division is based on the parties’ assets at the time of the divorce

Family Law (5 decks)

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