Marriage Flashcards
Marriage - Gral Elements (3)
1) Capacity (18 y/o)
2) Mutual consent (usually btwn man and woman)
3) Civil contract: actual celebration of contract as prescrbied by law
Marriage - Validity Reqs (7) CALF SAW
1) Consanguinity - no closer than 2nd cousins
2) Already married - living spouse at time of marriage
3) License
4) Filed certificate
5) Solemnization
6) Age of Majority
7) Witnesses - 2 physically present
Marriage - Validity Req - License/from whom, valididity, lack of
- from county editor
- Validity for 3-60 days to celebrate marriage
- Failure to obtain doesnt per se invalidate marriage
Marriage - Validity Req - Filed Certificate/ formal req
- Signed by W + officers
- Filed with county editor and state registrar
Marriage - Validity Req - Solemnization / celebration
- Celebrated by authorized person/officer
- i.e. judge, court commissioner, licensed/ordained clergy
Marriage - Validity Req - Age of Majority
- Gral rule: 18
- Under 18th: with parent/court consent, unless pregnancy
CL marriage
- w/legal effect despite no license/ceremony
- Not recognized by all states BUT if valid in the state where contracted then valid in all states
- DOMA: unCX to fed prohibition
CL marriage - Elements (3)
1) 2 people living together (co-habit)
2) Have writtena agreement ( E of capacity of being married + intention to be married)
3) Hold themselves to other people as married
Registered Domestic Partnership - SUR18 elements
- Share household
- Un-married to other person
- Registered in the state
- 18 y/o or older
Dissolution (Divorce) - Concept
A court decree that dissolves a marriage
Marriage - Actions - Other than dissolution (5)
1) Temporary relief (child custody/visitation, support, TRO, protection order)
2) Legal Separation
3) Declaration of Invalidity
4) Financial burden on spouse: i.e. maintenance
5) Foreign Divorce Decree Enforcement
Temporary relief for marriage - Gral / when, guiding pple
- Available pending dissolution decree
- Application of “best interest” when children involved
Temporary relief for marriage - Types (4)
1) Children custody and visitation plans
2) Child support orders
3) TRO (temporary restraint order)
4) Protection Orders for Domestic Violence
Temporary relief for marriage - Children custody and visitation plans / guiding pple, possible content
- permanent when dissolution decree or temporary
- Application of “best interest of the children”
- Possible content: designate primary residential parent, schedule of contact, allocation of decision making, transportation arrangements, restrictions of contact
Temporary relief for marriage - Child Support Order / method of determination, permanency
- Determined by court based on state schedule in relation to parent’s income
- Usually not include income from new spouses
- Periodical reviewed/modified
Temporary relief for marriage - Child Support Order - Content/Elements SODA THIEF (9)
1) Standard Calculation
2) Other expenses (i.e. day care, athletics, lessons, etc)
3) Deviation from state standard is possible
4) Adjustments (Motion) /Modification (Petition)
5) Transportation: for long distance travel for visitation
6) Health Care: when extraord and in excess of standard calculation
7) Insurance: court can compel parent for life insurance
8) Educational Support
9) Federal Tax Exempt
Temporary relief for marriage - Child Support Order - Elements - Standard Calculation
Figure from state schedule divided by parents on their portion of the total house hold net-income
Temporary relief for marriage - Child Support Order - Adjustment/Modification / time for and of, E for determination
- usually every 2 years or according to agreement
- No possible retroactive change
- Use of pay-stubs and tax returns as basis for calculation
Child Support Order - Educational Support / conditions for “higher ed” (4)
- No duty to support higher education after 18/graduation
- Can be imposed by court if:
a) parent ability to pay
b) aptitude/ability of child
c) whether parents received secondary education
d) whether there was intention to support from parents during marriage
Temporary relief for marriage - TRO - to prevent (4):
1) Disposal/concealment of property
2) Interference w/peace of other parent or child
3) Entry to family home
4) Remove a child from court JDX
Temporary relief for marriage - Protection Orders for Domestic Violence / when, procedure
- For cases of abuse/threat of physical harm.
- Resolved in separated civil proceeding
- Requires a high standard of proof
Legal Separation - Gral / when, how
- Spouses live apart while remaining married
- By mutual consent or judicial decree
Legal Separation - Differences with dissolution (4) (legal sep/dissolution)
1) Status of marriage: married vs dissolved (free to marry)
2) Reconciliation: dismiss case / re-marry
3) Waiting period: none (180 days fater decree entered to turn into decree of dissolution) / 30-90 since service and filing before decree of dissolution
4) Conversion to dissolution decree
Marriage - Declaration of Invalidity - Gral /standing, purpose, effect
- Required by 1/both parties
- Ask court to determine the validity status of marriage
- If found invalid court enters into decree of dissolution
Marriage -Declaration of Invalidity - Grounds DAFT LUV (7)
1- Duress: only for forced party
2- Already married prohibition
3- Fraud: fraudulent inducement
4- Consanguinity (too close related)
5- Lacked Capacity
6- Under-age
7- Void out-of-state marriage
Marriage -Declaration of Invalidity - Grounds - Fraud examples
- Promise to have children
- Promise to convert to spouse’s religion
- Concealment of serious physical/mental injury
Financial burden on spouse (maintenance) - JDX Requirement for court to establish it
Court needs PJDX
Foreign Divorce Decree Enforcement / formal reqs (2)
1- Most states give FFC when at least 1 spouse domiciled in forum state
2- Requires reasonable notice and opportunity to be heard for the other spouse
Marriage -Dissolution - JDX requirement (2)/ when, reqqs
- At time of filing:
a) Requiring spouse domiciled and reside in the state forum
OR
b) Either spouse with significant relation with state
Marriage - Dissolution - Venue requirement
Any county in the state where at least 1 spouse/child resides
Marriage - Dissolution - Grounds/ gral rule, what and waht not to prove
- Gral Rule: “NO FAULT dissolution”
- Only need to allege irreconciliable diferences / irreparably broken relation
- No need to prove misconduct
Marriage - Dissolution - Exception to no need to prove misconduct for dissolution / distribution of property (2)
- When spouse has disposed common estate because of gambling
- Abusive behaviour
Marriage -Dissolution - Minimum Waiting Period
- 30 to 90 days from filling/serivce for dissolution
- even if parties in full agreement
Mediation and Settlement - for Divorce Agreement / by whom, purpose, conditions
- By mediator
- To provide enough info for spouses to make informed decision
- Agreement has to be fair - not disadvantage to 1 party
Grounds for setting aside divorce agreement (4) FDCM
- Fraud
- Duress
- Coercion
- Misconduct of mediator
Marriage - Dissolution - Procedure regarding irreconcilable diferences
- If respondent doesn’t deny: court enters into decree of dissolution
- If respondent denies: court can makes determination and can refer to counseling agency (for reconciliation or dissolution)
- Court can refuse to enter decree if substantial ancillary issues in maintenance/support/children pending
Marriage - Property Division - Gral/ what, by whom, application
- All property (joint/separate)
- By court in just and equitable distribution
- Applies to dissolution, legal separation, declaration of invalidity
Marriage - Property Division - Process IVD steps
1st- Identify all property and debts of marital estate
2nd- Value property
3rd- Divide property among spouses in just and equitable manner
Marriage - Property Division - Factors for just and equitable manner distribution (3) DEP
1) Duration of marriage: 0-5, 5-30, 30>
2) Economic Circumstances of spouses at time of separation
3) Property Amount: independent of character of property (joint /separate)
Marriage - Property Division - Factors for just and equitable manner - Duration of marriage rules - types (3)
- Short term: less than 5 = return parts to pre-marriage positions
- 5-30: discretional to court
- Long term: more than 30: equalizing of assets and incomes
Marriage - Property Division - Pre-nuptial agreement - Gral/ formal reqs, when, purpose, possible exclusions
- written and signed contracts
- celebrated pre marriage (or civil union)
- Used to designate property as joint-separate at time of death
- Some states exclude child support or custody designation that later can be proved unfair
Property Division - Pre-nuptial agreement - FOG requirements for validity
1- Full disclosure of material facts
2- Opportunity for both parties to seek independent council
3- Good faith from both parties
Marriage - Property Division - Joint and Separate Property - Gral/ time of distinction, effects
- Court makes characterization before award
- although it does not control distribution of property
Marriage -Property Division - Joint Property (3) CGH
1) Compensation: all income,earning, benefits during marriage
2) Goodwill: professional reputation or practice can be valued (determined by expert testimony) - Intimate relation to 1 spouse considered at time of just/equitable distribution
3) Hidden: post distribution - discovered asset, both parties as tenant in common in 50%
Marriage -Spousal Maintenance - Gral/ for whom, type, establisment
- For spouse/child
- it can be permanent or temporary
- Decided on case-by-case w/high degree of discretion for court
Marriage -Spousal Maintenance - Court discretion factors (3)
1) Need for maintenance vs ability to pay
2) Standard of living of requesting party w/attention to physical and emotional conditions
3) Education/training of seeking spouse in order to find employment (i..e rehabilitative maintenance)
Marriage -Spousal Maintenance - Court discretion factors - Education - Rehabilitive Maintenance
Court is allowed to stablish a temporary maintenance for one of the spouses in ordert obtain education or training to increase posibilities of livehood.
Marriage - Modification of Decree of Dissolution /when, whose burden
- When circumstances significantly + unforeseeable changes on parental income/job or in children needs
- Burden on the moving party
