Marriage & Divorce Flashcards
What is a marriage?
A civil contract between two people
What does marriage require?
- Both parties have capacity to give consent
- Exchange of consideration in the form of:
- Mutual exchange of promises; and
- Imposition of rights and obligations that come with the marriage
How can a marriage contract be modified or terminated?
Only with state intervention
What does ceremonial marriage require?
- License
- Solemnization
What are the possible restrictions for a marriage license?
- Age
- Waiting period
- Expiration of license
What is the age requirement for a marriage license?
- At least 18 years old
- Parental consent if a party is under 18
Note: This is for most jurisdictions, though all jurisdictions impose a minimum age requirement
True or False: Many states require a waiting period between when a marriage license is issued and the marriage ceremony.
True
Can the results of premarital medical testing be a condition for issuance of a marriage license?
No
Expiration of a license is how many days after issuance?
Varies from 10 to 30 days
When will a marriage license NOT be issued?
- If a party is already married to someone else
- If the parties are too closely related
- If the marriage is a sham
- If the parties are incapable of understanding the act of marriage (e.g. fraud or duress)
What is required to solemnize a marriage?
- At least 2 witnesses (most states)
- An officiant (most states)
- Marriage license filed with the appropriate government office
What is a proxy marriage?
When a party has a stand-in for them at the ceremony because they cannot physically attend
Note: Allowed by some states
What are the requirements for a common- law marriage?
- Capacity to marry
- Consent
- Cohabitation
- Conduct (i.e. hold themselves out in public as if married)
When won’t a state recognize common-law marriage from other states under the Full Faith and Credit Clause?
If the state has a strong public policy against recognizing the marriage
How can a valid marriage be terminated?
- Annulment
- Divorce (dissolution)
- Death
What is annulment?
A judicial decree that voids a marriage
When is annulment available?
When a marriage is void ab initio or voidable
When does annulment apply?
When an impediment to a legal marriage existed at the beginning of the marriage
What is a void marriage?
A marriage not legally recognized for any purpose (“as if it never happened”)
What happens if a party is already married?
The second marriage will be void
Note: The burden is on the person trying to prove the first marriage
What are the three ways a marriage can be void?
- Prior existing marriage
- Incest
- Mental incapacity
What is a voidable marriage?
A marriage that is valid until one of the parties seeks annulment
When does age make a marriage voidable?
The following can seek an annulment:
- A party is underage and did not seek their parents’ consent
- A parent of a minor
What are the five ways a marriage can be voidable?
- Age
- Impotence
- Intoxication
- Fraud, misrepresentation, duress, coercion, force
- Lack of intent
After an underage party reaches the age of majority and continues to cohabitate with their spouse, can they seek an annulment?
No
When does impotence make a marriage voidable?
When one party is naturally and incurably impotent
Exception: The other party knew about the impotence prior to marriage
When does intoxication make a marriage voidable?
When either party was incapacitated due to alcohol or drugs
Exception: The parties continue to cohabitate after marriage (ratification)
When does fraud make a marriage voidable?
When the fraud:
- Goes to the essence of the marriage
- Existed at the time of the marriage
- Is not about future facts
And the parties immediately cease living together once the fraud is discovered
When does lack of intent make a marriage voidable?
When the parties acted with no intention to be married
If a voidable marriage due to lack of intent has been consummated, can it be annulled?
No
What are the effects of annulment?
Either party can seek:
- Spousal support
- Equitable distribution of marital property
- Child support (for a marital child)
What is the defense to annulment?
Denying the impediment
Note: The other party can still pursue divorce
What is a putative marriage?
Equitable remedy to protect a party who believes their marriage is valid
Note: Adopted by most jurisdictions
What is divorce?
Legal dissolution of marriage
What is the residency requirement for divorce?
- At least one party must be a resident of the state
- The length of time varies
Note: Most states of a residency requirement
When is a no-fault divorce granted?
When the marriage is irretrievably broken
What are the grounds for fault-based divorce?
- Adultery (opportunity + inclination)
- Cruelty or inhumane treatment (not one-off)
- Desertion
- **Habitual drunkenness* that impairs the marriage
- Bigamy
- Imprisonment for a specified period of time
- Indignity (minority of states)
- Institutionalization with no reasonable prospect of discharge or rehabilitation
When do defenses to divorce apply?
- Fault-based divorces
- Affirmatively pleaded
What are the defenses to divorce?
- Recrimination and unclean hands
- Connivance (consent to participate in marital wrong)
- Condonation (forgiveness)
- Collusion
- Provocation
- Insanity
- Consent (desertion or adultery)
- Justification
Can religion be a defense to divorce?
No
