Marriage Flashcards
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Common Law Marriage
Common law marriage is recognized in South Carolina and requires no ceremony or documentation to be valid. A common law marriage is evidenced by:
(1) agreement to be married
(2) cohabitation
(3) holding out
(4) both parties of legal age (at least 16)
(5) no other legal impediments to the marriage A common law marriage has the same rights and duties as formal marriage and must be dissolved in the same manner as formal marriage.
To be common law married in South Carolina, the elements must be met in South Carolina.
If parties are unable to prove a common law marriage, the couple is treated as cohabitants, and the family court lacks jurisdiction to divide the property.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Formal Marriage
For formal marriage to take place, SC statute requires
(1) a marriage license a. if either applicant is between 16-18 and unemancipated, he/she must show parental consent b. both applicants must be at least 16.
(2) a waiting period of 24 hours
(3) no legal impediments to marriage a. consanguinity b. bigamy c. mental incapacity (results in a voidable marriage) d. same sex
(4) no fraud or duress
(5) consummation by cohabitation
(6) ceremony administered by an official authorized by the law.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Confidentiality
By statute, spouses are privileged against disclosure of confidential communications made by one spouse to another during marriage, except in
(1) child abuse or neglect cases
(2) death of a child
(3) criminal sexual conduct with a minor
(4) commission or attempt of a lewd act upon a minor The testifying spouse holds the privilege, not the spouse who initially made the communication.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Doctrine of Necessaries
Spouses are generally not responsible for the other’s debts acquired before the marriage or after marital litigation begins, unless the goods or services provided were necessary for the support of the spouse or minor children residing with that spouse.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Intestacy
The surviving spouse (who survives more than 120 hours after the other’s death) of a person who dies intestate is entitled to a share of the estate determined as follows:
a. if there are no surviving issue, spouse is entitled to whole estate
b. if there are surviving issue, spouse is entitled to half the estate
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Elective Share
the surviving spouse has a right to take 1/3 of a decedent’s estate after funeral expenses, administration expenses, and enforceable claims are subtracted. A spouse can waive this right.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Omitted Spouse
If a testator fails to provide for his surviving spouse, the urviving spouse will receive the same amount
she would have received had the decedent died intestate, unless
a. the will shows the omission to be intentional OR
b. the testator provided for the surviving spouse via non- testamentary provisions in lieu of a testamentary provision.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Property Rights
Each spouse owns and controls his or her own real and personal property before and during the marriage.
(1) Real property held jointly: marital property.
(2) Gift from one spouse to another: marital property
(3) Conveyances: joint property IF conveyed jointly with right of survivorship
(4) Divorce: right of survivorship is severed upon divorce, and the parties hold as tenants in common.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Support and separate maintenance
The obligation to support is reciprocal, and either spouse may apply for support at any time without seeking dissolution of the marriage. The extent of support is determined by the circumstances of the parties and may be modified upon a showing of substantially changed circumstances.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Name Change
A person who petitions for a name change must
provide:
(1) results of a fingerprint and background check
(2) screening statement from DSS indicating whether the person is in the Child Abuse and Neglect registry.
(3) an affidavit by the petitioner stating whether the petitioner is under any court order to pay child support or alimony
(4) a screening statement from SLED that indicates whether the person is a registered sex offender. A parent who wishes to change the name of his minor child must petition a family court judge in the appropriate circuit., naming the other parent as a party to the action unless waived by the court. Such a petition will be granted if it is in the best interests of the child.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Parens Patriæ Doctrine
South Carolina protects and safeguards the welfare of its children. The Family Court is vested with the exclusive jurisdiction to ensure that, in all matters involving a child, the best interest of the child is the paramount consideration.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Parental Rights and Duties
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children. Specific rights and duties appurtenant to parenthood include:
(1) access to information
(2) custody
(3) emergency authorization of extraordinary medical care
(4) consent to marriage
(5) consent to enlistment in the armed forces
(6) consent to major nonemergency medical and surgical treatment
(7) obligation to provide financial support for the child
In any issue concerning a minor child, the “best interest” of the child is the primary guide.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Emancipation
Emancipation terminates the duty of support. Emancipation may be court ordered before age 18 and is presumed when any of the following conditions are met: (1) child turns 18, unless enrolled in high school (not to exceed 19)
(2) child marries
(3) child becomes self-supporting; OR
(4) child graduates from high school (if already 18)
Generally, there is no duty to support a child past majority, except where there is
(1) a preexisting contract or court order,
(2) child has physical or mental disabilities, OR
(3) other exceptional circumstances warrant continued support.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Liability of Parents for Child’s Acts
Parents can be liable for certain
types of acts of a minor child:
(1) Lodging: the parents of a minor are liable for the acts of the minor that cause damage to a lodging establishment room or furnishings or cause injury to persons or property.
(2) Property Damage: a party is entitled to recover damages in an amount not to exceed $5000 in a civil action from the parents or legal guardian of a minor who damages real or personal property.
(3) Driving: The person who signs for a minor’s beginner’s permit is jointly and severally liable for any damage caused that is not covered by insurance. The head of a family who provides a family car for the use of his minor child is liable negligence of the family member using the vehicle for a family purpose.
The right to marry is fundamental but may be regulated by state, as long as the regulation is the least restrictive means to serve a compelling state interest.
Domestic Violence
Victims of domestic violence may obtain orders of protection. Violation of such an order is a misdemeanor, and an arrest may be made with or without a warrant.
Hearings on orders of protection may be held on an emergency basis, for good cause shown, within 24-hours after service of a petition. If a court denies an emergency hearing or one is not requested, the hearing must, if requested, be granted within 15 days.
An order of protection must be for a fixed time not less than six months and not more than one year and may be extended or terminated upon motion by either party showing good cause with notice to the other party.
A respondent has the right to a hearing on the extension of an within thirty days of the date upon which the order will expire.
If the parties reconcile, the court may grant an order of dismissal without a hearing if the petitioner appears personally at the offices of the issuing court, shows proper ID, and signs a written request to dismiss based on the reconciliation.
