Marriage

Question 1

Define: Marriage

Answer 1

Marriage is the legal union of two individuals; the law imposes various legal obligations and liabilities on the parties.

Question 2

What are the limitations on marriage?

Answer 2

1. Age
2. Consanguinity
3. Capacity
4. Bigamy/polygamy

Question 3

Describe AGE under limitations on marriage.

Answer 3

Age - most states impose a minimum age requirement, usually 18, before a person can consent to marriage.

// Some states allow minors to marry if there is a parental consent or judicial approval

Question 4

Describe CONSANGUINITY under limitations on marriage.

Answer 4

Consanguinity - people who are too closely related are prohibited from marrying each other

Question 5

Describe CAPACITY under limitations on marriage.

Answer 5

Capacity - 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

Question 6

Describe BIGAMY/POLYGAMY under limitations on marriage.

Answer 6

Bigamy/Polygamy - no person may marry who has a prior undissolved marriage to another living spouse

// Exceptions: 
i. Removal of impediment - under the Uniform Marriage & Divorce Act (UMDA) a bigamous marriage can be validated upon the removal of the impediment (when the prior marriage is terminated)

ii. Presumption of validity - under the presumption of validity, the last of several marriage is presumed valid, which may be rebutted by evidence that the prior marriage(s) still persist.

Question 7

Generally, state the requirements to marry.

Answer 7

Procedural and state-of-mind requirements exist for a valid marriage.

Question 8

Procedural requirements

Answer 8

Most states require both a license and solemnization (ceremony).

1. License - obtained from appropriate government - designated licensing officer prior to solemnization; then
2. Solemnization - conducted by an authorized clergy member or judicial officer
   // License must be completed/signed by person who solemnized the marriage and filed with the appropriate government office – this created a public record of the marriage.

Question 9

State-of-mind requirements

Answer 9

State-of-mind requirements - both parties must consent to marriage, meaning they each intended to take on the obligations of marriage

// Factors - in evaluating consent, courts look at: 
1. Capacity - parties must have capacity to understand and agree to their actions (one under the influence of drugs or alcohol may lack capacity to enter into marriage

2. Intent - parties must intend to enter a marriage relationship on their own free will (fraud, duress, coercion, etc. will negate the consent requirement

Question 10

Common Law Marriage

Answer 10

In a common law marriage, a couple is legally considered married without having registered or performed legal requirements for marriage (abolished in most states).

Question 11

Common Law Marriage requirements

Answer 11

Requirements - where recognized, a common law marriage is established by:

1. Consent - exchange of consent between two people(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 (joint bank account, same last name, telling people they are married)

Question 12

Common Law Marriage recognition

Answer 12

recognition - 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 those where common law marriage is illegal.

Question 13

Premarital agreements

Answer 13

Premarital agreements are contracts 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 contract
Uniform Premarital Agreement Act (UPAA) - adopted by most states; provides rules as to what parties may include in the contract

Question 14

Premarital agreements requirements

Answer 14

1. Writing - must be in writing to satisfy SOF
2. Voluntariness - must be entered into voluntarily (without fraud, duress, overreach)
3. Full & fair disclosure - both parties must fully and fairly disclose their financial worth

Question 15

Premarital agreements amendments

Answer 15

May be revoked or amended by written agreement signed by both parties; amendment is enforceable without consideration.

Question 16

Premarital agreements enforcement

Answer 16

Courts strictly scrutinize premarital contracts.

// 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

Question 17

Child custody provisions in premarital agreements

Answer 17

These provisions are not binding, and void in some states

Question 18

Property & support rights & responsibilities

Answer 18

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.

Question 19

Tenancy by the entirety

Answer 19

in many states, where spouses take real property jointly, a tenancy by the entirety is presumptively created

// if marriage is dissolved, parties hold property as tenants in common

(see cards below 14-17)

Question 20

Support

Answer 20

Each spouse has an obligation to support the other, and one spouse may be held liable for another spouse’s purchases.

// Ex. Under agency principles, one spouse can be held liable to third parties for purchases made by the other spouse where expressly or impliedly authorized.

Question 21

Necessaries doctrine

Answer 21

One spouse may be held liable to creditors for necessaries purchased by the other spouse.

// Food, medical care, shelter, clothing, etc.