Marriage and divorce

Question 1

Common-law marriage

Answer 1

Most states do not recognize common-law marriage.

A common-law marriage requires:

(1) Mental and legal capacity to marry;
(2) Present agreement—i.e., that both parties presently intend to be married;
(3) Cohabitation; and
(4) Holding out a marital relationship to the community.

Question 2

Conflicts of laws: validity of a marriage

Answer 2

A marriage—including a common-law marriage—valid in one state will be valid in another unless it violates a strong public policy of the other state.

Question 3

No-fault divorce

Answer 3

Every jurisdiction has unilateral no-fault divorce, which requires neither fault nor consent of the other spouse.

Question 4

No-fault divorce: irreconcilable difference

Answer 4

No-fault divorce generally requires that the marriage be irretrievably broken with no prospect of reconciliation, often using the term “irreconcilable differences.”

There need not be an attempt at reconciliation.

Question 5

Minimum separation period

Answer 5

Some states require a minimum period of separation before a divorce will be granted.

The separation need not be mutually agreed to—i.e., a spouse can unilaterally move out and start the separation period.

Question 6

Mediation

Answer 6

When mediation is used to facilitate separation and divorce, the mediator has a duty to:

(1) Be impartial and disclose any conflicts of interest;
(2) Clearly explain and control the mediation process;
(3) Ensure that the parties have the information to make an informed decision; and
(4) Not coerce or improperly influence a party to make a decision.

Question 7

Mediation: domestic abuse

Answer 7

A mediator is required to recognize a family situation involving domestic abuse and take appropriate steps and shape the mediation process accordingly.

Question 8

Common-law marriage: termination

Answer 8

A valid marriage, including common law marriage, can be terminated only by annulment, divorce, or death.

Question 9

Putative spouse doctrine

Answer 9

Most states have adopted a version of the putative spouse doctrine. Under the doctrine, a party who:

(1) participated in a ceremonial marriage and
(2) believes in good faith that the marriage is valid

may use a state’s divorce provisions if the marriage is later found void due to an impediment.

Although this claim does not result in a divorce, it does provide equitable relief through maintenance and property distribution.