Matters preceding marriage and process of getting married

Question 1

Breach of promise to marriage

Answer 1

1. Breach of promise to marriage is no longer actionable-

a. No cause of action for emotional distress

Question 2

Pre-marital gifts

Answer 2

2. Pre-marital gifts – you can only get these back if marriage is called off ONLY IF the gift was conditioned on subsequent marriage
   a. Pretty much an engagement ring only.

Question 3

Prenup

Answer 3

k between 2 people who intend to marry.

a. Label—modern = pre-marital agreement.
b. K is about economics. What will happen if marriage fails. Contingent planning document. Like spouse A will pay spouse b 10k/mo for 10 years.
c. Pre-nup can deal with whatever party wants it to
i. Can be about wills.
ii. Can specify household chores

Question 4

Basis for challenging prenup

Answer 4

• SOF, actually married, unconscionable, product of duress

1. SOF – must be in writing and signed by both parties.
2. Couple must have gotten married, not just cohabit, in order for prenup to be valid.
3. On the merits challenges:
   a. Unconscionable— high burden 1) no disclosure of assets, 2) no waiver of asset disclosure 3) no independent knowledge of assets by challenger
   ii. Plus substantive unfairness
   iii. OR
   iv. Agreement is so meager in post-divorce support that it leaves recipient party dependent on government support = unconscionable. Unforeseen and extreme hardship. Public policy

b. Product of duress—
i. Almost never see physical duress against fiancée.
ii. Emotional duress or time pressure—
1. Like at the church in front of 200 people asking for signature.
2. Or one party didn’t have counsel
3. Disparity in business experience.
4. Whether there was an understanding of the rights being forfeited—does the party understand they’re giving up a judicial determination

Question 5

Process of getting married- majority of states

Answer 5

a. Most states, only 1 way to get married
i. Ceremonial marriage—need marriage license(proving capacity to marry- age, mental fitness, fee, blood test reqs) and need a ceremony (officiant + solemn promises)

2. Marriage license proves capacity to marry.
   a. Age
   b. Mental fitness
   c. Gay couples- DO have capacity to marry.
3. Must pay for license.
4. Some states have waiting period after license and marriage.
5. Most states have no waiting period.
6. Blood test requirements have been abolished most states.
   a. Like siphyllus, Some states still require test for rubella
7. For ceremony
   a. Need officiant—dif states allow different officiant. Usually members of clergy and civil officers who can administer oath can get you married.
   i. If your faith doesn’t have clergy, member can still marry it
   ii. Some states notary can marry you
   iii. Justices of peace, etc. can marry
   iv. Nowadays anyone can become officiant in most states.
   v. Mistake about credentials of officiant wont invalidate marriage so long as parties operate in good faith

b. Must exchange solemn promises—may possibly be tested.
i. Parties must say something recognizing assumption of new status as spouses.
ii. Parties must mean it.
iii. No magic words that must be uttered, can write own vows.
iv. Do not have to be dressed up in fancy building.

Question 6

Process of getting married in minority of states - common law marriage

Answer 6

b. Some states allow common law marriage—wont be tested on merits
i. But it IS PORTABLE. If you relocate to where common law marriage is not allowed, that new state will recognize the common law marriage from another state.