Marriage and Marital Agreements

Question 1

Marriage - Getting Married - Definition of Marriage

Answer 1

Marriage = civil contract, which can be modified or terminated only with state intervention.

Requirements = parties must be legally capable to consent.

Question 2

Marriage - Getting Married - Ceremonial Marriage

Answer 2

Requirements = license + solemnization.

Question 3

Marriage - Getting Married - Marriage License

Answer 3

Requirements = capacity to marry (minimum age/parental consent), waiting period between date of marriage and date of ceremony, medical testing (some states mandate but cannot condition license on result), expiration date (most states license expires).

Question 4

Marriage - Getting Married - Grounds for Denial of Marriage License

Answer 4

Grounds = one party already married to someone else, parties are too closely related, “sham” marriage, parties incapable of understanding the nature of the act, one or both parties under the influence of drugs/alcohol, lack of consent due to duress/fraud.

Question 5

Marriage - Getting Married - Same Sex Marriage

Answer 5

Permitted in all states; all states and federal government must recognize same-sex marriage legally entered into in another state.

Question 6

Marriage - Getting Married - Solemnization

Answer 6

Requirements = ceremony must be performed in front of two or more witnesses + judge, political official, or member of the clergy must solemnize.

Question 7

Marriage - Getting Married - Common Law Marriage

Answer 7

Requirements = parties must agree they are married, cohabit as married, and hold themselves out to the public as married. Still need legal/mental capacity (age, not too closely related, etc.)

NB: intent must be evidenced by words in present tense (e.g. “we are married”).

NB: many states no longer recognize.

Question 8

Marriage - Getting Married - Recognition of Common-Law Marriage

Answer 8

Only CO, DC, IA, KS, MT, RI, SC, TX, UT recognize. Under conflict-of-law principles, a marriage that is valid under the law of the place in which it was contracted is valid elsewhere unless it violates a strong public policy.

Question 9

Marriage - Getting Married - “Heartbalm” Actions

Answer 9

“Heartbalm” actions = a civil suit for money damages based on damage to a jilted party’s reputation; abolished in most states.

Question 10

Marriage - Ending Marriage - Annulment

Answer 10

Annulment = voids a marriage and declares it as having never been valid.

Requirements = void marriage or voidable marriage.

Question 11

Marriage - Ending Marriage - Void Marriage for Annulment

Answer 11

Void marriage = treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any purpose.

Grounds = prior existing marriage (some states allow it to become valid if one party had good-faith belief that the marriage was valid and the impediment is later removed; rebuttable presumption that latest marriage is valid) incest, mental incapacity (must understand the nature of the marriage contract, e.g. duties and responsibilities).

Question 12

Marriage - Ending Marriage - Voidable Marriage for Annulment

Answer 12

Voidable marriage = valid until judicially dissolved.

Grounds = age, impotence, intoxication, fraud, duress, or lack of intent.

Question 13

Marriage - Ending Marriage - Equitable Distribution of Property in Annulment

Answer 13

A party may request: equitable distribution, spousal support, child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage.

Question 14

Marriage - Ending Marriage - Children of Annulled Marriage

Answer 14

Considered marital children.

Question 15

Marriage - Ending Marriage - Defenses to Annulment

Answer 15

Void marriage - only defense is denial of the impediment; removing the impediment makes the marriage voidable.

Voidable marriage - equitable defenses of unclean hands, laches, and estoppel.

Question 16

Marriage - Ending Marriage - Putative Marriage/Spouse

Answer 16

A party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void.

Question 17

Marriage - Ending Marriage - Divorce

Answer 17

Types = no-fault and fault.

Question 18

Marriage - Ending Marriage - Residency Requirement for Divorce

Answer 18

Most states require at least one party to be a resident for a specific period of time before filing.

Question 19

Marriage - Ending Marriage - Grounds for No-Fault Divorce

Answer 19

Grounds = marriage is irretrievably broken and there is no prospect of reconciliation. Irreconcilable differences must exist for a specific period of time before filing.

Question 20

Marriage - Ending Marriage - Grounds for Fault-Based Divorce

Answer 20

Grounds = adultery (opportunity + inclination must be shown), cruelty (physical or mental harm and continued habitation is unsafe or improper), desertion (one spouse unilaterally leaves with intent to remain apart), habitual drunkenness (frequent intoxication that impairs marital relationship) bigamy (knowingly entered into prior legal existing marriage), imprisonment (for specified period of time), institutionalization for insanity (with no reasonable prospect of discharge/rehabilitation).

Question 21

Marriage - Ending Marriage - Defenses to Fault-Based Divorce

Answer 21

Must be affirmatively pleaded.

Grounds = recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion.

Question 22

Marriage - Ending Marriage - Division of Property

Answer 22

Types = community property/equal division (AZ, CA, ID, LA, NV, NM, TX, WA, and WI) + equitable distribution/fair distribution.

Question 23

Marriage - Ending Marriage - Marital Property

Answer 23

Types = “hotchpot” approach (all property owned by either spouse) + property acquired during marriage (most states).

NB: burden of proof is on party asserting property is nonmarital.

Question 24

Marriage - Ending Marriage - Non-Marital Property

Answer 24

Types = property acquired before marriage, excluded by parties valid agreement, gift or inheritance (except between spouses), award/settlement for claim arising before marriage.

Question 25

Marriage - Ending Marriage - Factors for Distribution of Marital Property

Answer 25

Factors = length of marriage, prior marriages, age/health, earnings, earning potential, liabilities, needs to both parties, contributions to education, income, medical needs, retirement, homemaking and childrearing services, value of separate property, standard of living, economic circumstances of each spouse, custody of minor children, dissipation/reduction of marital property.

Question 26

Marriage - Ending Marriage - Specific Types of Marital Property

Answer 26

M Property = retirement/pension benefits (marital property if acquired during marriage), unexercised stock options (if acquired during the marriage), post-separation property (can be marital property).

Not M property = professional licenses/degrees (not property but can affect alimony), expectancy interest in property, Social Security benefits.

Depends on state = personal injury claim/worker’s compensation, goodwill of business, accumulated sick/vacation days.

Question 27

Marriage - Ending Marriage - Tax Consequences of Equitable Distribution

Answer 27

Transfer of property between divorcing spouses is tax free. Transferee’s basis in property is same as transferor’s.

Question 28

Marriage - Ending Marriage - No Modification of Property Division

Answer 28

Property division is based on the parties’ assets at the time of divorce and cannot be modified.

Question 29

Marriage - Support After Marriage - Alimony/Spousal Maintenance

Answer 29

Spousal support = one spouse’s monetary obligation to provide the other spouse support in the form of income; awarded if the recipient cannot provide for his own needs.

Question 30

Marriage - Support After Marriage - Factors for Spousal Support

Answer 30

Factors = financial resources including property division, child support, earning potential, ability to pay, standard of living, time to find employment or complete education/training, length of marriage, contributions to marriage (particularly those that enhanced earning potential), age and physical/mental health; marital misconduct.

Question 31

Marriage - Support After Marriage - Types of Spousal Support

Answer 31

Types = lump sum, permanent, limited duration, rehabilitative, reimbursement (rarely granted), palimony (for unmarried cohabitants; only available in some states).

Question 32

Marriage - Support After Marriage - Modification of Spousal Support

Answer 32

Test = party seeking must show significant change in circumstances in the needs of the dependent spouse or financial abilities of the obligor that warrant modification.

Grounds = death of spouse (terminates support), remarriage (of receiving spouse), cohabitation (of receiving spouse with someone who is not family; not an automatic modification), retirement (effect depends on jurisdiction).

Willful/voluntary reduction income =/= grounds for reduction in support.

Question 33

Marriage - Support After Marriage - Spousal Support During Marriage

Answer 33

“Necessaries doctrine” - application depends on state.

Question 34

Children - Child Support - Child’s Right to Support

Answer 34

Child’s right = right to support from both parents, regardless of marital status.

Question 35

Children - Child Support - Parent’s Right to Visitation Regardless of Non-Payment of Support

Answer 35

Visitation rights cannot be denied for nonpayment.

Question 36

Children - Child Support - Parent’s Agreement About Child Support

Answer 36

Parents can enter into an agreement but cannot agree to any release or compromise that would negatively affect the child’s welfare. Can be enforced as contract, or formalized into judicial order.

Question 37

Marital Agreements - Premarital Agreement

Answer 37

A valid marriage is sufficient consideration. In many states, agreement must explicitly state its applicability to divorce.

Question 38

Marital Agreements - Separation Agreement

Answer 38

Can define property division, spousal support, child support, custody, and visitation.

Generally merged into final judgment for divorce; otherwise governed by contract law.

Question 39

Marital Agreements - Property Settlement Agreement

Answer 39

Can settle economic issues; entered into parties before divorce decree is issued.

Question 40

Marital Agreements - Validity - General

Answer 40

Requirements for enforceability = disclosure of financial status of both parties at time of execution, agreement is procedurally and substantively fair and reasonable, agreement is voluntary.

Must be in writing and signed by party to be charged.

Question 41

Marital Agreements - Enforceability - UPPA Defenses to Enforcement

Answer 41

UPPA requires party against whom enforcement is sought to prove:

i) involuntariness, or
ii) that the agreement was unconscionable when executed and she did not receive or waive fair and reasonable disclosure and did not have or reasonably could not have had adequate knowledge of the other’s assets and obligations.

Question 42

Marital Agreements - Enforceability - Provisions Preventing Modification

Answer 42

Provisions preventing modification of property rights = enforceable.

Provisions preventing modification of child support = unenforceable.

Question 43

Marital Agreements - Unmarried Cohabitants - Agreements Between

Answer 43

Cohabitation agreement = contract between unmarried persons; generally enforceable unless the only consideration is sexual relations.

Property division = equitable property division to avoid unjust enrichment (e.g., resulting trust, constructive trust, or quantum meruit) is available.