Marriage Flashcards
Marriage License Requirements
- Capacity to Marry (i.e., minimum age restrictions, parental consent for young)
- Waiting period between date of license application and date of issuance or ceremony
- Medical testing (some states)
- Expiration date
When is a Marriage License Not Issued?
- One party already married
- Parties are too closely related
- Marriage is a “sham”
- The parties are incapable of understanding the nature of the act
- One or both is under the influence of drugs or alcohol
- A party lacks consent due to duress or fraud
Solemnization
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
Common Law Marriage
- The parties agree they are married
- Cohabit as married
- 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”
Heartbalm Action
Civil suit for money damages based on the damage to a jilted party’s reputation
Abolished in most states
Annulment
Voids a marriage and declares it as having never been valid
Void Marriage
Treats the marriage as if it never happened, does not need to be judicially dissolved
- 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)
- Incest
- Mental incapacity
Voidable Marriage
Valid until a judicial decree dissolves the marriage
Grounds:
1. Age
2. Impotence
3. Intoxication
4. Fraud
5. Duress
6. Lack of Intent
Equitable Distribution of Property in Annulment
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
Children of Annulled Marriage
Considered marital children
Defense to Void Marriage
Deny the existence of the impediment that makes the marriage void - removing it makes it voidable
Defenses to Voidable Marriage
Unclean hands, laches, and estoppel
Putative Marriage/Spouse Doctrine
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
Divorce Residency Requirement
One party must be a resident
No-Fault Divorce Grounds
- Marriage is irretrievably broken and there is no prospect of reconciliation
- Irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action
Fault-Based Divorce Grounds
- Adultery
- Cruelty
- Desertion (does not apply if parties separate by mutual consent)
- Habitual Drunkenness
- Bigamy
- Imprisonment (one spouse for specified period of time
- Institutionalization for insanity (no reasonable prospect of discharge or rehabilitation)
Defenses to fault-Based Divorce
- Recrimination
- Unclean Hands
- Connivance
- Condonation
- Collusion
- Provocation
- Insanity
- Consent
- Justification
10, Religion
Community Property
Equal division of marital property
Equitable Distribution
Fair distribution of marital property (not equal)
Marital Property
All property acquired during marriage
Burden of proof on party asserting property is nonmarital
Hotchpot Approach
All property owned by either spouse is marital property
Separate Property
- Property acquired before marriage
- Property excluded by parties’ valid agreement
- Property acquired by gift or inheritance (except for gifts between spouses)
- 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
Factors for Distribution of Marital Property
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
Professional Licenses/Degrees
Not a property interest - can effect spousal support
Retirement or Pension benefits
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
Damages for Pain/Suffering/Disability
Separate property of injured spouse
Consortium Losses
Separate property of non-injured spouse
Awards for Lost Wages, Loss of Earning Capacity, and Medical Expenses
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)
Goodwill
The reputation and clientele of a professional practice is considered marital property in some states
Accumulated Sick and Vacation Days
States are split
Expectancy Interest in Property
Not distributable
Social Security Benefits
Not subject to equitable distribution
Post-Separation Property
Can be marital property (most states)
Unexercised Stock Options
Marital property if acquired during marriage
Tax Consequences of Equitable Distribution
Transfer of property between divorcing spouses is tax-free
Transferee’s basis in property - same as transferor’s basis
Modification
Modification of a property division is NOT MODIFIABLE - the property division is based on the parties’ assets at the time of the divorce
