Other MEE Rules Flashcards
Common controversies arising in anticipation of marriage (<1%)
a) Fraudulent Inducement to Marry. If the consent of either party to a marriage was fraudulently obtained, the marriage will be void from the time its invalidity is declared by a court.
b) Premarital Gifts Conditioned on Marriage. Under the traditional rule, a gift conditioned on marriage (e.g., the engagement ring) was returned to the donor if the donor was NOT at “fault” for the break-up. Under the modern view, such gifts are returned to the donor regardless of fault.
c) Contracts Restraining or Promoting Marriage. Contracts that restrain or promote marriage are disfavored because the right to marry is a fundamental right. Complete restraints on the right to marry are invalid; however, partial restraints may be valid if they are reasonable under the circumstances.
Common limitations on marriage (<1%)
a) Bigamous Marriage. NO state recognizes the validity of a bigamous marriage.
b) Incestuous Marriage. Marriages determined to be incestuous (marriages between relatives) are treated as void. Jurisdictions are fairly evenly split regarding whether cousins may marry. Under the UDMA, persons may NOT marry their:
(1) Ancestors or descendants;
(2) Siblings (regardless of whether whole/half blood or adoption); OR
(3) Uncles, aunts, nieces, or nephews.
c) Minors. In nearly every state, persons must be 18 years of age to marry. However, some states allow 16 or 17 year olds to marry with parental consent or judicial approval.
d) Physical Incapacity. A marriage is voidable if one party is physically unable to consummate the marriage and the other party was unaware of the problem at the time of solemnization.
e) Fraudulent Marriage. A marriage is voidable for fraud if a party makes a material misrepresentation that affects the essentials of the marriage (e.g., concealing impotency, concealing a pregnancy by another, lying about religious beliefs).
Marriage requirements (1.9%)
A valid marriage requires that:
(1) The parties obtain a marriage license prior to the solemnization ceremony;
(2) The marriage is solemnized by a ceremony that is conducted by an authorized clergyman or judge; AND
(3) Both parties consent.
(a) Under the traditional approach, courts will find consent if the parties participated in a valid ceremony and sought to obtain at least some of the benefits of marriage.
(b) Under the modern approach, courts will find consent if the parties intended to take on the usual obligations of marriage (slightly higher standard).
Spousal support in premarital contracts (3.7%)
a) During the Marriage. Premarital agreements that limit a spouse’s support during marriage are generally void as against public policy.
b) After the Marriage. In some jurisdictions, premarital agreements that limit a spouse’s support after the marriage ends are void as against public policy. Under the Uniform Premarital Agreement Act (UPAA), modification or elimination of spousal support is permitted so long as such provisions do not make the former spouse eligible for public support (e.g., welfare).
Necessaries doctrine (3.7%)
In most jurisdictions, spouses have a duty to support each other equally under family expense statutes. If a creditor provides a “necessary” item (such as medical care) to one spouse, it can sue the other spouse for payment if the purchasing spouse does not pay.
Historical Note: At common law, husbands were legally responsible for supporting their wives. Under the necessaries doctrine, the wife could purchase necessaries (e.g., food, clothing, shelter, etc.) on credit and charge them to her husband. The creditor who furnished the necessaries to the wife could then recover fair market value for the goods or services even though the husband did not enter into the contract. Today, most states have modified the necessaries doctrine holding both spouses liable to creditors for necessaries purchased by the other spouse.
Annulment: grounds and defenses (1.9%)
a) Annulment is a judicial declaration that a marriage never existed and was invalid from when the parties entered into it. A marriage can be annulled if it is void or voidable. Common grounds for an annulment include:
(1) Lack of capacity to consent at the time of the marriage (e.g., mental incapacity, influence of drugs or alcohol, inducement by force/duress/fraud, etc.);
(2) Lack of capacity to physically consummate the marriage by sexual intercourse;
(3) Underage minors without parental consent or judicial approval; AND
(4) Marriages prohibited by law (e.g., bigamy, incest, etc.).
b) Ratification may be a defense to an annulment action involving voidable marriages. A void marriage (e.g., bigamy or incest) can never be ratified. Generally, ratification occurs when the party seeking annulment fails to bring the annulment action within a reasonable amount of time after discovering the defect.
Child custody: jurisdiction
The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.
- Initial custody determination (home-state jurisdiction). A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state:
o Is the child’s home state and has been the home state for a period of six months or since birth, if the child is less than six months old; or
o Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents still lives there.
- Significant-connection jurisdiction. A court can enter or modify an order if:
o No other state has or accepts home-state jurisdiction;
o The child and at least one parent have a significant connection with the state; and
o There is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
- Exclusive-continuing jurisdiction. Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that:
o Both parties no longer reside in the state; or
o The child no longer has a significant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state.
Relocation of a child (1.9%)
In order to modify a child custody order, the parent seeking modification must show a substantial change in circumstances (and that the modification would be in the child’s best interests). If the custodial parent is proposing to relocate with the minor child in a way that impairs the noncustodial parent’s ability to see the child under the court-ordered visitation schedule, the relocation will almost always constitute a substantial change in circumstances.
In most jurisdictions, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent’s visitation.
In determining whether to modify the custody order and allow the parent to relocate, the court will consider various factors, including:
The best interests of the child
The relationship of the non-relocating parent with the child
Age and needs of the child
The child’s preference
The quality of life of relocating parent and child
Note: Some courts balance the impact on the noncustodial parent’s visitation rights against the benefits of the move to the child and the custodial parent.
Mediator’s role in custody disputes (1.9%)
a) In some states, a court has authority to order mediation of custody disputes. In others, mediation is mandated by statute under certain circumstances.
b) The mediator must attempt to reach a settlement that is in the best interests of the child. However, a settlement agreement may be set aside for mediator misconduct (e.g., failure to be impartial or fully inform the participants of the law and their rights).
Parental consent for child’s medical procedures (1.9%)
a) A doctor who performs surgery on a minor child without a parent’s consent is liable in tort, UNLESS any of the following exceptions apply:
(1) Emergency. Parental consent is not necessary in emergency situations when there is not enough time to obtain consent from a parent.
(2) Public Health Concerns. Parental consent may not be necessary for certain types of medical care related to public health concerns (e.g., treatment for especially contagious diseases such as venereal disease).
(3) Age of Child. Some states make an exception to the parental consent requirement for children near the age of majority undergoing relatively minor medical procedures.
b) Parens Patriae. Under the parens patriae authority of the state, a state can intervene to protect children when their parents deny them needed medical care (usually based on abuse or neglect grounds). However, the concept of need is interpreted narrowly. In order to decide whether the medical care is needed, courts will:
(1) Examine whether a condition is life threatening or whether it can be postponed until the child reaches the age of majority; AND
(2) Weigh the risks and benefits of the treatment.
If a parent denies their child seriously needed medical care based on religious beliefs, many states will still order the needed medical care but exempt the parents from criminal liability.
Lawsuits against family members (1.9%)
a) Inter-Spousal Immunity. Historically, spouses could not sue each other in tort. Today, most jurisdictions have abolished inter-spousal immunity.
b) Parent-Child Immunity. Historically, minor children could not sue their parents in tort. Today, most jurisdictions have abolished parent-child immunity. In jurisdictions that still have parent-child immunity, there is usually an exception for willful or wanton conduct as opposed to mere negligence.
Loss of consortium (1.9%)
Loss of consortium is a claim in damages intended to compensate a spouse for loss of companionship, sexual relations, or affection. Damages for loss of consortium are typically only available to the legally recognized spouse of the injured party.
Artificial insemination (3.7%)
a) Generally, if a mother is married, the mother’s husband is presumed to be the father of a child born from artificial insemination if:
(1) He consented in writing (if no writing exists, some courts will find that implied oral consent is sufficient); AND
(2) A medical doctor performed the procedure.
b) Most states extinguish any parental rights the sperm donor may have as the biological father of the child upon successful artificial insemination.
Surrogacy (1.9%)
a) Surrogacy arrangements typically arise when a couple wants a baby, but the woman is unable to carry a baby to term. In a surrogacy contract, the surrogate mother, generally in return for financial compensation, agrees to bear and give birth to another party’s child (usually through artificial insemination or in vitro fertilization) permitting the other party to raise the child.
b) Treatment by the Courts. Some states hold parties that enter into a surrogacy contract criminally liable. Other states treat surrogacy contracts as void against public policy without imposing criminal liability. Still other states permit surrogacy contracts so long as the birth mother is given a period of time to change her mind after the child is born.
Role of mediation in separation and divorce
The mediator must follow a code of conduct. Duties include that the mediator must:
Be impartial and disclose any conflicts of interest he may have;
Clearly explain and control the mediation process and ensure that the parties have the information to make an informed decision; and
Not coerce or improperly influence a party to make a decision.
Exam Tip 1: Mediator misconduct may be grounds for not enforcing a separation agreement or a property settlement.
