Marriage & Matrimonial Actions Flashcards
what is unity of time?
the interest of each tenant has to vest at same time
what is a voidable marriage?
an impediment to marriage existed at the time the parties were married
what is marital property?
all property aquired by either spouse during an ongoing marriage (not by gift or inheritance) is presumed marital prop subject to division on divorce.
most states hold that marital prop accrues until marriage is DISSOLVED (not separation)
what is an ex parte divorce?
a divorce in which the court has jurisdiction over only the divorce (only status of divorce bc only 1 party is present/domiciled in state)
Does one party’s insistence on signing a pre-marital agrmnt as a condition of marriage make the k unenforceable?
doesn’t by itself render the agreement involuntary
what are the requirements for a separation agreement?
- intent of at least one spouse
- voluntarily entered into AND
- fulfillment of any relevant statutory requirements
Divorce: what are the dif. forms of preliminary relief?
- temp parent plan
- temp. child support
- TRO
- Protective Order
Who is a putative spouse?
a person who has cohabited w/ another w/o legally being married BUT in good faith believed was married
what is required for severance of a tenancy by the entirety?
- death
- divorce
- mutual writtn agrmnt btwn spouses
- execution by joint creditors
does the law of equitable distribution protect meretricious spouses or cohabitating partners?
generally doesn’t protect cohabitants upon dissolution of the relationship
what are the exceptions to the confidential marital communications privilege?
- civil actions between spouses
- criminal prosecution where one spouse is charged w/ a crime against the other spouse or child(ren)
does the spousal testimonial privilege survive divorce?
no. only invoked during a valid marriage.
does the confidential martial communications privilege survive divorce?
yes. applies to all communications made during marriage and even if the parties are divorced by the time of the trial.
can cohabitants bring a wrongful death claim on behalf of a partner?
no. wrongful death statutes are intended to compensate family members, generally spouse, child, or parent.
what is required for a marriage to be solemnized?
- officiant
- 1 witness but now may be 2 witnesses
- declaration to take each other as spouses
duty of support?
each spouse has a duty to support the other spouse during the marriage
what is preliminary relief?
temporary relief available pending the entry of a decree of dissolution by a court
what is the confidential marital communications privilege?
all comm made during the course of a valid marriage AND intended to be confidential btwn spouses are privileged. In both civil & criminal.
Do the rights of a putative spouse supersede the rights of a legal spouse or other putative spouses?
rights acquired by a putative spouse do not supersede the rights of the legal spouse or those of other putative spouses.
property, maintenance, support rights among claimants apportioned as appropriate & in interest of justice.
does the doctrine of interspousal tort immunity extend to criminal prosecutions?
re: spousal abuse, even where a spouse is immune from tort liability for torts committed against the other spouse, such immunity doesn’ extend to crim. prosecutions
how can an underage spouse ratify a voidable marriage?
by continuing the marriage upon reaching 18. If parties freely cohabit after minor is 18 then the marriage shall not be annulled
what is a premarital contract (prenup)
made in contemplation of marriage & to be effective upon marriage
what must a party against whom enforcement is sought to prove for a prenup to be unenforceable under the UPAA?
- involuntary
- unconscionable when executed, and
- prior to execution, party didn’t receive “fair and reasonable” disclosure and “didn’t have adequate knowledge” of the other’s assets & obligations.
can minors under the age 18 marry?
Minors under the age 18 can marry with the consent of both parents, in some states minors w/o parental consent can marry with judges consent.
what law governs if there is no choice of law provision in a prenup?
law of the state where K was executed or the state w/ most significant relationship to the parties.
Can an action be brought to recover gifts given in contemplation of marriage?
Yes, if the sole consideration for the transfer was a contemplated marriage which has not occurred.
Is a spouse liable for other spouses necessaries?
each are liable for necessaries incurred by the other. Creditors may sue either or both spouses for necessaries.
what’s a common law marriage?
minority of states create marital obligations & rights identical to those from a ceremonial marriage, equitable distribution of property.
when may parties get a no fault divorce based on irretrievable breakdown of the marriage?
when either or both parties are unable to cohabit & no prospects to reconcile
Does the doctrine of interspousal tort immunity exist under modern law?
judicially or legislatively abrogated or modified bc courts & legislatures have dismissed fears of disrupting familial harmony & collusion.
When does the premarital contract become effective
effective upon marriage
COME BACK TO FINISH THIS ANSWER. What do visitation rates include?
COME BACK TO FINISH THIS ANSWER. With whom the child will visit.
What kind of “heart balm” actions have been abolished
- right to recover $ as damages for alienation of affections,
- adultery,
- seduction, and
- breach of K to marry
What is the waiting period for Issuance of a marriage license?
waiting period, such as 72 hours, b4 a marriage license will be issued
What level of scrutiny applies to the right to an abortion?
no strict scrutiny, standards are:
1. prior to viability - may not prohibit but may regulate unless undue burden
2. after viability - may prohibit unless necessary to protect the woman’s health or life
what is divorce ?
judicial decree which terminates the marital relationship & changes the legal status of the married parties.
Who was the holder of the spousal textilonial frivolous testimony
under the FRE, the witness spouse is the holder of the privilege (D spouse can’t prevent witness spouse from testifying)
what is divisible divorce?
marital determination: jurisdiction based on domicile.
alimony, prop, child support: jurisdiction requires “in personam jurisdiction” over D
Can voidable marriages be attacked after death of one of the spouses?
No! If one dies, voidable marriages can no longer be voided.
It is personal jurisdiction over the defendant required?
- For separation, divorce, annument = personal jurisdiction is not required
- prop rights, support & alimony = per. juris. over the person adversly affected by the determination is required when court determining ancillary issues.
Can the unconscionability doctrine be used to relieve a spouse who believes she made a bad bargain?
no!
Does the presentation of the premarital agreement very close to the wedding date make the contract unenforceable?
in recent yrs, courts have accepted more recent agreements. Generally, courts look at wide range of factors like difficulty conferring with independent counsel, preexisting pregnancy, financial losses & embarrassment arising from cancellation of the wedding were the prenup not to be signed.
What types of relationships are considered incestuous and therefore avoid?
void if:
blood ancestors
blood descendants
full/half-blood siblings
adopted siblings
lineals up or down one generation
What can the parties to a prenup not contract with respect to?
- child support
- child custody
- a waiver of alimony
What is mutual consent to marry?
assent then present, freely, voluntarily, understandably given, representing a mutual intention of marital relationship by competent contracting parties.
Our annulment decrease given full faith and credit?
entered by a court of proper jurisdiction are entitled to full faith and credit in other courts.
What will a court look at to determine whether a premedal contract was voluntarily executed
whether there was fraud, duress, or coercion.
what does consideration mean in reference to gifts given in contemplation of marriage?
consideration means “motive” or “reason” as opposed to K consideration
Can a voidable marriage be challenged by a 3rd party?
No! voidable marriages can only be challenged by the spouses themselves.
How can a party to cohabitation recover shared property from a former partner?
- express K
- implied-in-fact K (inferred from behavior w/ respect to cohabitants household)
- constructive trust or resulting trust
What is the effect of attemped reconciliation on the statutory time period for a separation.
it will not toll the statutory time period for separation where the evidence reflects that the parties didnt resume their married life
Is a prenup enforceable without consideration?
Yes bc the marriage itself is considered sufficient consideration
What is required for Abrina to be enforceable?
- voluntariness
- fairness/conscionability
- disclosure
What is the effect of violation of solemnizing statutes?
Generally, cts have held that noncompliance w/ particular statutory regulations (# of witnesses) has no effect on the validity of the marriage
what is the applicable standard of review for most governmental actions that affect fundamental rights
strict scrutiny (gov’t action must be necessary to achieve a compelling gov’t purpose)
what constitutes consideration for a separation agreement?
mutual promises of the parties
What are necessaries?
proper & requisite for sustenance of life (food, clothe, shelter, medication, etc.)
Is self-help permitted for void marriages
parties to a void marriage are permitted to walk away w/o court order since marriage was invalid from onset.
Reason for declaration of nullity is to have court settle other issues and/or to clarify record for both parties.
What determines the jurisdiction over a divorce?
residency and durational requirements: one must be a resident of the jurisdiction where action brought in
What factors will a court consider when determining if a separation agreement was voluntarily entered?
- free from mistake, menace, fraud, duress
- full & fair disclosure by both parties AND
- representation by independent legal counsel
What level of scrutiny applies to homosexual activity?
Right to engage in consensual homo activity is a fundamental right. Scrutiny is unknown but a state may not criminally punish consensual homos in the privacy of one’s own home
Which marriage is presumed valid in a bigamus relationship?
latest in a series of marriages is valid. BUT, preumption may be rebutted …
What are the requirements for separation agreement?
- intent of at least 1 spouse to dissolve
- the agreement was voluntarily entered into
- the fulfillment of any relevant stat. requirements
When a marriage is void, is the prenup enforceable?
if marriage is void, agreement is enforceable only to the extent necessary to avoid an inequitable result
do states recognize express contracts between unmarried cohabitants?
almost every state now recognizes express K’s btwn cohabitants - esp. if written - UNLESS the sole consideration is sexual relations.
What is the effect of noncompliance with the licensing requirements?
compliance w/ marriage license statute is generally not essential to the validity of the marriage, unless the stat. makes compliance essential.
What is the common law doctrine of family privacy?
right of privacy is the right to be free from the publicizing of one’s private affairs w/ which the pub has no legit concern
when does putative spouse status terminate?
when putative spouse gains knowledge that they are not legally married
Is the common law marital exception to rape still in existence?
most states have eliminated the exception (where a spouse can’t be raped if married)
Can a common law marriage be recognized in the state that does not permit common law marriages?
under universally acepted conflic-of-laws principles, a marriage valid under the law of the place in which it was contracted will be valid elsewhere unlss violating public policy
What is ratification?
continuing marital relationship after the impediment is removed
what property rights does a spouse have w/ respect to separate property?
a married person may own, hold, control, disposeof, or encumber her separate property w/o consent or joinder of her spouse and w/o her spouse having any right, title or interest in such separate property
What is the unity of interest?
each tenant must have an identical interest in duration and share
That common law, could one spouse be liable for a tour against the other?
there was a doctrine of interspousal tort immunity, which could be waived.
What is the separation agreement
a K btwn spouses who have decided to live apart and sets forth the manner in which the obligations of the relationship are to be carried out
What does a licensed marry generally require?
proof that each part is 18 or has consent of parents
proof that the marriage is not prohibited
results of any medical exam required by the laws of the same state
What are the grounds for annulment?
- under the age of legl consent
- lacked mental capacity
- lacked physical capacity
What is required for someone to be a putative spouse?
cohabitation and good faith belief in the existence of a legal marriage
What are the requirements for a common law marriage?
- capacity to enter a marital K
- present agrmnt to be married
- cohabitation AND
- holding out a marital relationship to the community
List three legal means of terminating a marriage
- declaration of nullity
- annulment
- divorce
What is the unity of possession?
each tenant must have the right to possess the whole
What is annulment?
action pursed to terminate a voidable marriage. if annulled, its as if they were never married, but process is same as divorce if children or prop were accumulated
What formalities are required for premarital contract?
in writing and signed by both parties
What is a no fault divorce?
irreconcilable differences or irretrievable breakdown of the marriage
what is declaration of nullity?
legal action pursued when the underlying marriage is legally void
Ten parties to avoidable marriage waive the voidability of the marriage?
yes, (not pursue an action for annulment) and choose to remain married
