Marriage and legal effects

Question 1

Premarital agreements explain

requirements to be valid

Answer 1

Premarital agreements are generally valid devices to resolve disputes between spouses in the event of divorce, as well as a means for estate planning in the event of death

Most states require premarital agreements to be in writing and signed by the parties to it.

Question 2

a. In most states, a premarital agreement will be invalidated when there is a court finding of EITHER:

Answer 2

(1) procedural unfairness in the making of the agreement; OR
(2) substantive unfairness in the agreement itself.

Question 3

(1) Factors considered relevant to procedural fairness may include:

Answer 3

(a) the fullness of disclosure of net worth;
(b) the availability of independent counsel or knowing and voluntary waiver of such representation;
(c) the timing of the presentation of the agreement, giving sufficient time to review before the wedding; and
(d) the relative bargaining power of the parties, and their relative levels of financial or legal knowledge.

Question 4

T or F Most states do not require independent counsel as a precondition to enforcing an agreement against an objecting party, but the assistance, or at least availability, of counsel may be a factor in the assessment of voluntariness for purposes of procedural fairness.

Answer 4

True

Question 5

The presence of only one spouse’s attorney at the signing of an agreement drafted by that attorney may further be considered

Answer 5

a coercive circumstance for the unrepresented party for purposes of procedural fairness

Question 6

general rule concerning adequate disclosure

Answer 6

In general: there must be fair and reasonable disclosure by both parties concerning each party’s property and financial obligations.

Question 7

Disclosure may not be required if:

1) there has been a voluntary waiver of this disclosure requirement; OR

Answer 7

2) A spouse has knowledge of or access to financial circumstances of the other spouse.

Question 8

EXAMPLE: For years before marriage, Nico worked as a bookkeeper in Dre’s catering business and managed the couple’s personal finances. In the documents Dre shared with Nico before signing a prenup, Dre underestimates the value of the business by 25%. Will Nico be able to challenge the agreement despite the underestimation?

Answer 8

No, because Nico worked for the business and had access to the books

Question 9

Lacking voluntariness, a premarital agreement becomes: subject to the contract defenses of

Answer 9

fraud, misrepresentation, or duress

Question 10

EXAMPLE: A soon-to-be husband presents his soon-to-be wife with a prenuptial agreement when they are on the plane flying down to the Caribbean for their wedding, where several hundred guests will be attending. The marriage was arranged via the internet and the couple has met only once on a weekend in the bride’s home country. She is very poor, unfamiliar with English, and cannot come to America unless the marriage goes forward. The agreement is written in English, and she signs it without reading it. what is the best contract defense that could be asserted in this situation?

Answer 10

This is a good case for a claim for duress.

Question 11

In determining whether a party entered a premarital agreement voluntarily, courts consider: the cumulative facts and circumstances. 1) For example, to establish that a person’s capacity to freely enter into the premarital agreement had been unduly impaired, it will: not be enough to only show that this party lacked

Answer 11

independent legal representation legal representation at the time the agreement was executed

Question 12

In most states, substantive unfairness requires a finding that: the premarital agreement’s terms or impact are?

Answer 12

are substantively unreasonable. (MBE standard)

note: Arguably, this standard is less demanding than an “unconscionability” standard.

Question 13

The UPAA (uniform premarital agreement act) view examines only the circumstances surrounding the execution of the agreement, not its fairness at the time of enforcement. In contrast, some states will evaluate fairness at the time of contract enforcement as well as at formation.
Under the UPAA, a premarital agreement becomes unenforceable if:
(a) there was a lack of voluntariness; OR

(b) the court finds BOTH that:

Answer 13

1) there was a lack of adequate disclosure (procedural unfairness) AND
2) the agreement was unconscionable (at the time of the signing.)

note: The “unconscionable” standard contemplates:a large disparity in sophistication and resources that results in a one-sided agreement due to inequity in bargaining power.

Question 14

In terms of subject matter for pre-marital agreements, are agreements concerning property division permissible?

is waiver of alimony permissible under a majority view?

Answer 14

Yes

Majority: and modern trends permits waiver of alimony by agreement.

However, some states permit only property division provisions and will not enforce a waiver of spousal support.

Question 15

T or F Even where the waiver of alimony is permissible, states tend to more closely scrutinize agreements waiving spousal support upon divorce.

Answer 15

True

Question 16

In virtually all states, it is invalid as against public policy for a premarital agreement: to

Similarly, under the UPAA, a premarital agreement may NOT: adversely affect the rights of?

Answer 16

abrogate, or even limit, the obligation of a parent to support his or her minor children to support.

rights of children to support.

Question 17

In most states, provisions dealing with the frequency of sexual relations and child-bearing are not

Answer 17

enforceable.

Question 18

Most states require a formal marriage.

b. A formal marriage entails BOTH:

Answer 18

a marriage license (ability to marry) and solemnization (wedding) of the marriage by a state-authorized official.

Question 19

Formal marriages are: presumptively valid, and so a party challenging the marriage has the burden of proving

Answer 19

its invalidity.

Question 20

Where there has been a failure to comply with marriage formalities, most states will:
forgive the mistake, and the marriage will be presumptively valid as long as

Answer 20

the parties were eligible to marry and were in good faith intending to enter a marriage.

Question 21

most states do not recognize common law marriage. The doctrine is still relevant nationwide because:
most states will recognize a common law marriage performed validly in another state, unless

Answer 21

unless the circumstances violate an important state public policy

Question 22

There are generally four requirements for common law marriages. What are the 4 requirements?

what is the burden of proving a common law marriage and who has the burden of proof?

Answer 22

Capacity to marry
Present intent to be married
Cohabitation
Holding out as a married couple

The burden of proving a common law marriage by its elements by clear and convincing evidence is on: the party asserting it.

Question 23

What does capacity to marry mean

Answer 23

None of the restrictions to the validity of a marriage may exist (e.g. consanguinity or prior-existing marriage).

Question 24

If the marriage is not valid upon formation, but the impediment is later removed: The common law marriage may be:

Answer 24

recognized as valid if all its other requirements are met.

Question 25

Present Intent to Be Married

Cohabitation

Answer 25

Intent must be for present marriage, not intent for a future marriage.

The cohabitation requirement means that the parties must live together on an ongoing basis and consummate the relationship.

Question 26

Holding Out as a Married Couple

Answer 26

The parties must represent themselves to others as married spouses and not merely as partners.

Question 27

In June 2015, the United States Supreme Court announced that governmental bans on same-sex marriage are unconstitutional under the U.S. Constitution. Specifically, the Court held that such bans violate the substantive due process doctrine and the fundamental right to marriage. This ruling impacts every state with a statutory or constitutional ban on same-sex marriage.
All states must now

Answer 27

recognize the same-sex marriages legally performed in other states, assuming that such marriages are otherwise in accord with the laws of the state where the marriage occurred.

Most significantly, all states must now allow same-sex couples to get married and accord such couples the same rights and obligations otherwise accorded people who marry.

Question 28

Majority Rule: If either party is a minor under the age of 14: marriage is prohibited. If either party is a minor between the ages of 14 and 18: a marriage license will not issue without:

In a minority of states, courts have adopted certain exceptions. which are?

Answer 28

Majority: the consent of a parent or guardian.

Minority: In some states, a minor between the ages of 14 and 16 will needs parental approval also need: to obtain court approval and some states make exceptions for pregnant teens.

Question 29

Majority Rule: Consanguinity: A marriage license generally will not be issued for marriages between blood relatives (whether of the whole blood or half blood) who are:

Answer 29

(a) ancestor and descendant;
(b) brother and sister;
(c) uncle and niece, or aunt and nephew.

Note: Affinity: In a small minority of states, the prohibition against marriage is extended to these same relationships when the parties are relatives by marriage.

Question 30

Marriages between first cousins: how do the courts generally view it?

Answer 30

There is a split among jurisdictions regarding marriage between first cousins.

Question 31

The inability of a party to consent to a marriage due to mental incapacity or infirmity will render the marriage

Answer 31

invalid.

EXAMPLE: Someone in their 80s who has Alzheimer’s, which is an impairment of their brain function, may have a disability which renders them incapable of entering into a marriage.

Question 32

A finding of fraud means that there was a:

lack of

Answer 32

true consent to the marriage

Question 33

A majority of states use the tort definition of fraud for purposes of considering inducement of the other party into marriage. What is the definition?

Answer 33

The intended misrepresentation or failure to disclose material facts in order to to induce the other party to enter the marriage;

Question 34

Instead of the materiality requirement, some states have a more demanding element, requiring that:
The fraud go to the

Answer 34

essence of the marriage. Essence of marriage includes:

Sexual relations and the ability and desire to have children

Question 35

T or F : False representations about one’s character, social standing, or fortune do not constitute fraud sufficient to annul a marriage.

Answer 35

True

Question 36

The ability to _________ the marriage is a common law requirement for marriage.

Answer 36

consummate

Question 37

A person who has already been married is incapable of entering into another valid marriage unless:

Answer 37

the former spouse has died, or the prior marriage has been judicially terminated.

Question 38

Presumption: The party’s latest marriage is valid, and any earlier marriage was

Answer 38

dissolved

Question 39

A subsequent marriage that is initially invalid because one of the parties had a prior marriage in force will become valid upon removal of the impediment of the prior marriage by death or dissolution.
(1) The following requirements typically must be met for this to occur:

Answer 39

they continued to live together as a married couple after the impediment had been removed.

the parties entered the subsequent marriage in good faith.

Question 40

What is an annulment and how is it used?

Answer 40

Annulment is a judgment declaring the invalidity of (“annulling”) the marriage.
It is used when the validity of a marriage is questioned. a party, and in some instances of a third party, may seek annulment as a remedy.

Question 41

what are grounds for an annulment?

Answer 41

void marriage
voidable marriage
ratification

Question 42

A voidable marriage is: valid until and unless?

Answer 42

valid until and unless the aggrieved party obtains an annulment

Question 43

Ratification of marriage

Answer 43

if a voidable marriage is confirmed or ratified by the aggrieved party, or if one of the parties to the marriage dies, the validity of the marriage may not be questioned or attacked by any person.

Question 44

Voidable marriages include marriages that have been attempted but were not successful based on:

Mnemonic MINT

Answer 44

Mental incompetence
Impotence of spouse
Non-age
Temporary lack of capacity (e.g. drunkenness)

Question 45

EXAMPLE: Britney and Kevin become extremely intoxicated and get married in Las Vegas. When they wake up, they agree that they are in love and want to stay married. They live together and have several children and then break up. Can they challenge the validity of the marriage that was arguable voidable at the creation? Why or why not?

Answer 45

No, Since they became sober and affirmed the marriage by agreement and cohabitation, neither can challenge the validity of the marriage that was arguably voidable at creation but has been validated by the later behavior of the parties.

Question 46

An annulled marriage is typically declared invalid from the date

Answer 46

of its inception and legally eradicates the marriage.

Question 47

Annulment Can sometimes obtain divorce-like remedies including:

Equitable relief on the theories of: equitable annulment remedies:

Answer 47

(1) property division;
(2) Spousal support/alimony

(1) Unjust enrichment
(2) Constructive trust

Question 48

Putative Spouse doctrine

Answer 48

under the putative spouse doctrine, a putative spouse is granted divorce-like remedies at the dissolution of the relationship even if the marriage is void because of a flaw in the marriage formation process. The doctrine provides an alternative when no marriage has been validly created.

Many states recognize a “putative spouse” doctrine,

Question 49

(2) To qualify as a putative spouse:

(a) there must be a ceremonial marriage; and

Answer 49

(b) at least one spouse must have a good faith belief in the validity of the marriage.

Question 50

A marriage which satisfies the requirements of the state where contracted: “will everywhere be recognized as valid, unless it:

Exception: EXCEPTION
(1) States differ as to what constitutes a “strong” enough public policy. example marriages between?

Answer 50

violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”

exception
1) States generally recognize marriages of first cousins married in a state where such marriages are legal.

Question 51

Have typically been recognized in states that prohibit them for residents, unless evasion of state law is suspected.
Explain evasion of state law

Answer 51

Most states do not recognize marriages entered into by their own residents if these residents:

(a) leave their home state to contract a marriage that would not be valid if contracted within that state; and
(b) intended to continue to reside in their home state.

Question 52

EXAMPLE: Bo and Cris are first cousins who both reside in State A, which does not allow first cousins to marry. To avoid this prohibition, they traveled to another state that does not prohibit the marriage of first cousins, and in that other state they obtained a marriage license and got married. They then immediately returned to State A, where they have been telling people they are married and otherwise holding themselves out as married. Will their marriage be recognized in State A?

Answer 52

No Because they have purposefully evaded State A’s law against first cousins marrying, their marriage will not be recognized.

Question 53

Unmarried cohabitants generally have no legally recognized “status” unless

Answer 53

they meet the requirements for common law marriage or putative spouses.

Question 54

Most states recognize express and implied contracts between cohabitating persons by which they agree to support each other (pay “alimony”) or share property: so long as there is consideration to support the contract other than the furnishing of?

Answer 54

furnishing of sexual services, because that would constitute an illegal contract.

Question 55

most states are so called “separate property” states.
When one spouse has title to a property, that spouse is the sole legal owner, and:
the other spouse cannot

Answer 55

prevent the title-holding spouse from conveying property to a third party.

EXAMPLE: If H has a pre-marital stock account in his sole name, he is the sole owner during the marriage and can dispose of the account without telling W or over her objections, because his name is on the asset and it is his.

Question 56

The duty of support is generally not enforceable by a spouse directly during the marriage because the court has a policy of non-intervention. Give an example.

Answer 56

EXAMPLE: Mrs. McGuire constantly asked her husband for a heater in her car and for indoor plumbing. He could afford these things but refused to provide them. The court ruled that because they remained married, there was no reason to interfere in their affairs.

Question 57

Creditors may enforce the duty of support. example

Answer 57

EXAMPLE: Mrs. McGuire could hire a plumber to put in indoor plumbing, and then Mr. McGuire would be accountable to pay the plumber.

Question 58

What does necessity refer to in terms of spousal liability?
The majority of states recognize a doctrine of necessaries whereby a spouse’s liability for obligations incurred by the other spouse arises in three primary situations: mnemonic FAM

Answer 58

Necessity refers to: the standard of living in which the family can afford.

Forcing the issue- spouse causes other spouse to be responsible for their expenditures

Agency theory- the person is acting on behalf of another

Medical expenses- if spouse has medical expenses, if other spouse has the money they must pay for their spouse’s medical expense’s

Question 59

EXAMPLE: Jody becomes ill and is admitted to the hospital and receives medical treatment. Jody later receives a hospital bill of $10,000, for which they have no insurance or money to pay the bill. Assuming Jordan, the spouse, has the money, can they both be held liable for the bill? why or why not?

Answer 59

Yes they can be held liable to the hospital because the medical bills were a necessity for Jody, who is unable to pay.

NOTE: Some states impose primary liability on the spouse who directly incurred the debt or liability, and secondary liability on the other spouse.

Question 60

EXAMPLE: Someone in their 80s who has Alzheimer’s, which is an impairment of their brain function, may have a disability which renders them incapable of entering into a marriage. why?

Answer 60

They do not have the capacity to understand the nature of the marriage contract.

Question 61

T or F present intent to be married for purposes of common law marriage can be implied based upon the parties’ behavior.

Answer 61

True

Question 62

Under the Uniform Marriage and Divorce Act (UMDA), alimony will be awarded only where a party actually needs it. However, does the UMDA deny alimony based on marital misconduct?

Answer 62

No the UMDA requires that alimony be determined “without regard to marital misconduct.”

Question 63

According to the Uniform Child Custody Jurisdiction and Enforcement Act, a state may take jurisdiction of a child welfare case if the child’s home state declines jurisdiction or there is no “home state.” What else is required for a state to take jurisdiction?

Answer 63

The child and at least one parent must also have a significant connection to the state, and

there must be significant evidence in the state.

example: if a mother abandons her child in a state, that state could become the home state because the abandonment creates the connection to the state where the child was abandoned and there is significant evidence in that state relating to the abandonment.