Marriage & Matrimonial Actions

Question 1

Mnemonic and Sections

Answer 1

“Just remember in Marriage: Adopt Children with smiling FACES, and everything will work out.”

I. Marriage & Matrimonial Actions (bulk)

II. Filiation Proceedings (paternity proceedings)

III. Children

IV. Adoption

V. Child Custody

VI. Equitable Distribution

VII. Alimony & Support

Question 2

I. Marriage & Matrimonial Actions

Answer 2

A. Controversies Arising in Anticipation of Marriage

B. Premarital Contracts (prenups)

C. Getting married

D. Being Married

E. Termination of Marriage

F. Mediation

G. Rights and duties of unmarried cohabitants

Question 3

A. Controversies Arising in Anticipation of Marriage

Answer 3

• No Heart Balm Actions- including other theories of law
• Gifts in contemplation of marriage can be recovered if sole consideration was contemplated marriage.

Question 4

B. Premarital Contracts

Answer 4

1. Formalities
   
   1. In Writing AND
   2. Signed by both parties
2. Enforceable without consideration (marriage is consideration)
3. Effective upon marriage
4. Content
5. Enforcement
6. Void Marriages

Question 5

Content of Prenups

Answer 5

• Permitted Agreements
  
  • Rights and obligations of each party in property
  • right to manage and control property
  • Property disposition upon ending of marriage
  • Modification or elimination of support (but see exception)
  • Making trusts, wills etc. to carry out
  • Rights and disposition of life insurance
  • Choice of law
  • Any other matter that doesn’t violate public policy
• Prohibited Agreements
  
  • Adversely affect right of Child support
  • Respecting child support or custody= always about child’s best interest
  • Waiver of alimony not permitted if causes spouse to become public charge.

Question 6

Enforcement of Prenups

Answer 6

Enforceability will Turn on:

1. Voluntariness (duress, presence of legal council, etc)
2. Unconscionability (unfairness as to:)
   
   1. fair and reasonable disclosure of finances
   2. waiver of any disclosure
   3. no adequate knowledge of property
3. Disclosure

Question 7

C. Getting Married

Answer 7

1. Who can marry?
   
   1. Capacity
   2. No incestuous or bigamous
2. Types of marriages
   
   1. Ceremonial
   2. Common law
   3. Putative spouse

Question 8

Types of marriage details

Ceremonial

Common law

Putative spouse

Answer 8

• Ceremonial
  
  • license
  • Solemnization
• Common law
  
  • capacity to enter marriage
  • present agreement
  • cohabitation
  • hold out marital relationship to public
• Putative spouse
  
  • cohabitation AND
  • Good faith belief of legal marriage (terminates when knowledge of none)

Question 9

D. Being Married

Answer 9

1. Rights and responsibilities
2. Family privacy
3. Remedies for tortious interference with marriage

Question 10

D. 1 Rights and responsibilities of spouses

Answer 10

Common law unity

Property rights and interests

Duty to support spouse

No name change requirement

Tort liability between spouses (modernly immunity abolished)

Criminal liability (abuse, Rape)

Question 11

D.2. Family privacy

Answer 11

Common law

Constitutional

Evidentiary privileges

Question 12

D. 3. Remedies for tortious interference with Marital Relationship

Answer 12

• Loss of consortium Elements
  
  • injuries to spouse
  • loss and expense fo the plaintiff spouse
  • Liability of the D for those injuries (causation)
• Alienation of affections
  
  • D misconduct
  • Loss of affection
  • Causal link
• Criminal conversation
  
  • Actual marriage
  • Sex between D (third Party) and P’s spouse

Question 13

E. Terminating a Marriage (types o f matrimonial actions)

Answer 13

• Declaration of nullity (incest or bigamy)
• Annulment
• Divorce
• Legal Separation

Question 14

E. 2. Annulment

Answer 14

Jurisdiction = Domicile of either party

• Grounds:
  
  • underage
  • Lack mental capacity (infirmity, intoxication, duress, fraud)
  • lack physical capacity
    
    • Cannot have sex
    • other spouse unaware of incapacity
• b continuing to be married once impediment removed

Question 15

E. 3. Divorce

Answer 15

• Most states are now No Fault
  
  • incompatibility
  • irretrievable breakdown of marriage
• Traditional grounds (see defenses)
  
  • cruelty
  • adultery
  • Desertion
  • Habitual addition
• Defenses
  
  • Consent (adultery)
  • Condonation (reconciliation)
    
    • Expressions of forgiveness
    • extent of cohabitation
    • necessity of cohabitation
    • sex
    • resumption and restoration of rights
• conversion divorce (written seperation agreement, no fault before no fault)
• Jurisdiction
  
  • Residency and durational requirements (90 days)
  • PJ over D required?
    
    • Seperation, divorce, or annulment= NO (one party domicile)
    • property, support, alimony= Yes (Pj over adverse party req.)
• Sister state recognition
  
  • FFC
  • Foreign divorces= usually recognized under comity

Question 16

E. 4. Legal Separation (aka Agreements)

Answer 16

Parties may enter into a written separation agreement, essentially a contract between husband and wife setting forth agreement about terminating marriage, does not terminate marriage.

• Does not terminate marriage
• Requirements:
  
  • intent of at least one to dissolve marriage and not resume
  • voluntarily entered
  • adherence to statute
• Binding upon court except re
  
  • support, custody, visitation
  • or if unconscionable

Question 17

G. Rights of unmarried cohabitants

Answer 17

• contracts
  
  • no formalities
  • unenforceable if sex is sole consideration
• No recovery for loss of consortium, NIED, and wrongful death
  
  • Some state allow recovery for Wrongful death for fiancee’s