Marriage and Divorce Flashcards
1) Validity and recognition
a) Requirements of marriage
a) Requirements of marriage
i) General requirements
(1) To be married, each individual must (mnemonic = CARS):
(a) have the capacity to consent;
(b) be of marriageable age (usually 18) or with judicial or parental consent (usually
between the age of 14 and 18);
(c) not be closely related to the other person (i.e., not siblings, uncle/niece; states
are split as to whether first cousins can marry); and
(d) be single—not already married.
(2) How to become married
(a) One must get a license.
(b) There must be solemnization by a judge or a member of the clergy.
(c) One must not be under duress or under the influence.
(3) Each state sets its own requirements on who can get married (e.g., age, relation) as
well as on how to get married (many states require witnesses, etc.).
ii) Mistake in formalities of marriage (never been tested)
(1) Most states say that if there is a mistake (for example, the license is filled in improperly), then the parties are still married so long as they are eligible to be married and had a good faith belief that they were married.
iii) Common law marriage
(1) To establish a common law marriage, the proponent must show (mnemonic =
CACH):
(a) capacity to enter into a marital contract,
(b) a present agreement to be married,
(c) cohabitation, and
(d) “holding out” a marital relationship to the community.
(2) Generally, the burden of proof is a “clear and convincing evidence” standard by the
party asserting the existence of the marriage.
1) Validity and recognition
b) Recognition of marriage
A marriage valid under the law of the place in which it was contracted will be valid
elsewhere unless it violates a strong public policy of the state that has the most
significant relationship to the spouses and the marriage.
1) Validity and recognition
c) Bigamy
i) A bigamous marriage is void from the beginning. It has no legal effect.
ii) However, there are two marriage-saving doctrines for the new spouse:
(1) There is a presumption that the most recent marriage is valid. (This is designed to
protect the parties’ expectations.)
(2) Further, the removal of the impediment (e.g., by divorce) will render a subsequent
marriage valid.
1) Validity and recognition
d) Gifts in contemplation of marriage
i) General rule: most gifts are valid so long as the donor intends to make a gift, there is
delivery of the gift, and the gift is accepted.
ii) Rule for engagement rings
(1) Conditional gift: The majority rule is that the donor gets the ring back if the couple
does not get married. A minority of states look at fault (who is at fault for the breakdown of the marriage) to determine who should possess the ring.
2) Obligations and immunity arising out of marriage
a) Support obligations of a married couple
a) Support obligations of a married couple
i) Right to own property: At common law, a married woman’s identity was swallowed up
in her husband’s identity. As a result of this marital-unity doctrine, a married woman
could not own property. In the mid-nineteenth century, Married Women’s Property Acts
restored property rights to married women. Thus, the wife had full rights to her own
earnings. So, a court may not overrule the spending decisions of a spouse with respect
to her own earnings.
ii) Support obligations: In all states, marriage does, however, create mutual support
obligations. Thus, a creditor who has furnished “necessaries” to a husband or wife may
sue the spouse of the purchaser and recover on the debt. (A creditor does not have
power to alter a spouse’s future spending, however.) But, the “support obligation is
limited by the common law doctrine of nonintervention, which disallows judicial
intervention in an intact family.” There is little caselaw, but courts have used “the
nonintervention principle to deny a support petition when the couple is living together.”
2) Obligations and immunity arising out of marriage
b) Family privacy and immunity from suit
b) Family privacy and immunity from suit
i) Family privacy doctrine: Disputes of intact families are treated by courts as private
matters that should be resolved at home. Courts have refused to resolve issues like
spending decisions, examine premarital agreements (when the couple is still married
and living together), etc. However, this does not extend to parental decision-making that endangers the child.
ii) Immunity
(1) Spousal immunity: At common law, spouses could not sue each other. (Women
were seen as property of, or as having the same identity as, their husband and the
husband could not be sued by the woman as it was viewed as being sued by themselves or their property.) This has been abolished by most states.
(2) Intra-family tort immunity: At common law, members of a family could not sue
each other. This has been abolished by many states.
iii) Marital rape (never been tested)
(1) At common law, rape that occurred within a marriage was not punished. Now, it is
generally punished; however, in some states it is punished to a lesser degree or under a different statute than rape by a non-spouse.
(2) Courts will look at two factors in deciding whether rape occurred:
(a) whether the couple is separated, and
(b) whether there was consent.
3) End of marriage or change in marital status
a) How a marriage ends
i) Divorce (marriage is over)
(1) No-fault divorce
(a) Recognition: Virtually all states are no-fault states. A spouse may obtain a divorce without a showing of fault or consent of the other spouse.
(b) Bases: The typical basis for a no-fault divorce is one or both of the following:
(i) irreconcilable differences, and/or
(ii) a minimum period of separation (usually one year or less, and the separation does not have to be consensual).
(c) Reconciliation: Today, a no-fault divorce may be granted without any attempt at
reconciliation. Even if one spouse believes that the marriage can be saved, this is not an adequate basis to deny the other spouse a divorce. There are no defenses to a no-fault divorce petition.
(2) Fault-based divorce
(a) Recognition: About 1/3 of states have eliminated fault-based divorce grounds
entirely. The other states recognize fault-based grounds in addition to no-fault grounds.
(b) Bases: Some examples of fault-based grounds include: adultery, desertion
without reasonable cause (if one spouse engaged in domestic violence, one
could argue “constructive desertion” by that spouse), cruelty, addiction, mental
illness, or a felony conviction.
(c) Why sue for fault-based divorce? In some states, proving fault will increase an alimony award or property division award.
(i) Financial misconduct: most states will consider financial misconduct in an alimony or property division case.
(ii) Marital misconduct: Proving marital misconduct (e.g., adultery) is unlikely to
significantly enhance a property division award or alimony award unless the misconduct was egregious. In some states, however, it will be considered as a factor in the court’s decision.
(d) Defenses to a fault-based divorce
(i) Collusion (the spouses agree that one committed a marital wrong in order to
get a divorce)
(ii) Connivance (the plaintiff facilitated the commission of a marital wrong)
(iii) Condonation (one spouse forgives marital wrong)
(iv) Recrimination (both spouses are guilty of fault grounds)
3) End of marriage or change in marital status
a) How a marriage ends
ii) Annulment (marriage never existed)
(1) If a marriage is void or voidable, an annulment is appropriate. It clears up the public
record. When a marriage is annulled, it is declared invalid from the date of its inception. An annulment legally “erases” a marriage. This is in contrast to a divorce
(where the marriage terminates upon the date of the divorce).
(a) Reason for annulment: Any of the void or voidable grounds mentioned below
(mnemonic = FIND):
(i) Fraud: but it must go to the “essentials” of the marriage (e.g., sexual
relations).
1. False representations regarding one’s character, social standing, or fortune are not enough. (Feb 2006)
(ii) Inability to consummate marriage: either spouse was physically incapable of having sexual relations.
(iii) Not allowed by law: e.g., bigamy, age, incest
(iv) Duress
(b) Difference between void and voidable marriage (never been tested)
(i) Void
1. These marriages are considered invalid from the start. The couple is considered to have never been married. Some examples are bigamy or incest. The only defense is that the impediment does not exist.
(ii) Voidable
1. These marriages are valid until a spouse brings an action to invalidate it (annul it). There must be some kind of impediment (e.g., fraud or duress) at the time of the marriage. Ratification (waiting too long to bring the action) is a defense.
(c) Putative spouse doctrine (Feb 2017)
(i) Sometimes a spouse can seek divorce-like remedies (e.g., property division or alimony) when an annulment is granted so long as there was a marriage ceremony and a good faith belief in the validity of the marriage.
3) End of marriage or change in marital status
a) How a marriage ends
iii) Legal separation (marriage does not end)
The marriage does not end; the couple merely separates and rights are determined
by the court.
