Marriage and Divorce Flashcards
What is a marriage?
A marriage is a civil contract between two parties who are legally capable of consent who exchange consideration with the acceptance of the imposition of rights and obligations.
What is required for a formal, ceremonial marriage?
A ceremonial marriage requires:
- A license
- Solemnization
What is required for a license?
- Capacity to marry
- Waiting period between date of marriage and ceremony, which has not expired
- Medical testing, if applicable
Can a state condition issue of a license on the outcome of a medical testing?
No.
What is required for a common-law marriage?
The parties must:
- Agree they are married;
- Cohabit as if married;
- Hold themselves out as married.
Are common-law marriages recognized by other states?
Yes, unless violating strong public policy
What are the four ways to end a marriage?
- Annulment
- Divorce
- Death
- Separation
What are the bases for a void marriages?
Bigamy, incest or consanguinity, or mental incapacity at the time of marriage
What is a voidable marriage?
Only a spouse can challenge a voidable marriage, and a judicial decree is needed to declare one void. Reasons include:
- Age
- Impotence
- Intoxication
- Fraud to inducement of marriage
- Misrepresentation, duress, force
- Lack of intent to be married
What is the consequence of an annulment on the basis of the marriage being void?
There are none, as the marriage was never valid.
What is the consequence of an annulment on the basis of the marriage being voidable?
There will be an equitable distribution of property and children of the marriage are still considered legitimate.
What defenses are available to a voidable marriage?
Laches, unclean hands, and estoppel.
What is required for a no-fault dirovrce?
Irreconcilable differences for a specific period of time.
What is required for a fault-based divorce?
- Adultery
- Cruelty
- Desertion (unconsented to)
- Habitual drunkenness
- Bigamy
- Imprisonment
- Institutionalization
What defenses are available to fault-based divorce?
- Unclean hands
- Connivance
- Condonation
- Collusion
- Provocation
- Insanity
- Consent
- Justification
- Religion
In a community property state, how is property divided?
Equally
In a state following equitable distribution, how is property divided?
A fair distribution of marital property, not necessarily an equal one
What is marital property?
Majority: property acquired during marriage
Minority: all property owned by either spouse
What is nonmarital property?
- Property acquired before the marriage
- Property excluded by the parties’ valid agreement
- Property acquired by gift or inheritance (except gifts between spouses)
- Any award for a cause of action accruing before the marriage
What are some factors for distribution of marital property?
Length of marriage, prior marriages, age, earnings, health, potential, value of property, etc.
Is a professional license or degree marital property?
No, but can affect alimony
Are retirement or pension benefits marital property?
Yes, if acquired during the marriage
Are personal injury claim proceeds or workers’ comp marital property?
(Maj) if accrued during marriage, marital property; (min) separate
Are consortium losses marital property?
No, property of non-injured spouse
Are lost wages, lost earning capacity, and medical expenses marital property?
Yes
Is goodwill marital property?
In some states, yes
Are social security benefits?
No
What are the tax consequences of equitable distributions?
Tax-free
Can you modify the division of property?
No
What makes a premarital agreement enforceable?
- Full disclosure
- Fair and reasonable
- Voluntary (signed and in writing)
What is needed to show adultery for a for cause divorce?
Opportunity and inclination
