Marriage Flashcards
what are the different limitations on the right to marry
- age
- too closely related
- capacity
- bigamy/polygamy
what’s involved with having the capacity to marry
each party must have the ability to comprehend and voluntarily consent to the marriage
- Physical capacity — in many states, marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the physical condition
what is a “bigamous” marriage and when can it be validated
no person may marry who has a prior undissolved marriage to another living spouse
- Removal of impediment — under the Uniform Marriage & Divorce Act (“UMDA”), a bigamous marriage can be validated upon the removal of the impediment (i.e., when the prior marriage is terminated)
what are the procedural requirements to be able to get married
most states require a license and solemnization (i.e., ceremony)
- License — obtained from appropriate govt.-designated licensing officer prior to solemnization; then
- Solemnization — conducted by an authorized clergy member or judicial officer who completes/signs the license
License then is filed with appropriate govt. office; creates a public record of the marriage
what are the state of mind requirements to be able to marry
both parties must consent to marriage, meaning they each intended to take on the obligations of marriage; in evaluating consent, courts look at:
- Capacity — parties must have capacity to understand and agree to their actions (e.g., one under the influence of drugs or alcohol may lack capacity to enter into marriage)
- Intent — parties must intend to enter a marriage relationship on their own free will (i.e., fraud, duress, coercion, etc. will negate the consent requirement)
what is common law marriage
In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage
Abolished in most states
what are the requirements to be have a common law marriage recognized
a common law marriage is established by:
1) Consent — must be consent to be in a permanent, exclusive relationship; agreement to cohabitate alone is insufficient
2) Cohabitation; and
3) Holding out publicly as spouses living together — e.g., joint bank account, same last name, telling people they are married
what happens if a common law marriage is recognized in one state
though largely abolished, if a valid common law marriage is formed under one state’s laws, it is regarded as a valid marriage in other states (even states that have abolished common law marriage)
what is a premarital agreement
Premarital agreements are Ks that provide for distribution of assets upon divorce or death in a way that varies from what the law would otherwise require
Marriage is considered sufficient consideration to support the K
Note: any child custody provisions are NOT binding
what are the requirements to create a valid premarital agreement
Writing — must be in writing to satisfy Statute of Frauds (“SoF”)
Voluntariness — must be entered into voluntarily (i.e., without fraud, duress, overreach)
Full & fair disclosure — both parties must fully and fairly disclose their financial worth
can a premarital agreement be amended/revoked
may be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration
how is a premarital agreement enforced
courts strictly scrutinize premarital Ks under the Uniform Premarital Agreement Act (UPAA)
- Scrutiny focuses on voluntariness and full and fair disclosure requirements, as well as whether terms are unconscionable
- Whether parties were represented by legal counsel may be a factor, and is required in some states
if there is a property division provision in the marital agreement, it must be (blank) to be enforced
fair and reasonable at the time it was formed (not when the divorce happens)
what happens if one spouse waives the right to get spousal support in the premarital agreement
it’s against public policy to enforce a waiver of spousal support if doing so would leave a spouse dependent on the state
what are the the property rights of spouses
Before and during marriage, each spouse owns and controls their own property, but property acquired during marriage may become owned as tenancy by the entirety
